Delvene Warren v The Dieri Aboriginal Corporation RNTBC

[2020] FWC 5969

[2020] FWC 5969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Delvene Warren
v
The Dieri Aboriginal Corporation RNTBC
(U2020/12182)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 11 NOVEMBER 2020

Application for an unfair dismissal remedy – application lodged before dismissal took effect – procedural irregularity – irregularity waived

[1] This decision concerns a procedural application by Delvene Warren (Ms Warren) on 30 October 2020 (amended on 3 November 2020) under section 586 of the Fair Work Act 2009 (FW Act) to waive an irregularity in matter U2020/12182. The irregularity is said to be that Ms Warren’s unfair dismissal application was lodged one day prior to her dismissal by the Dieri Aboriginal Corporation RNTBC (DAC or the Respondent) taking effect.

[2] I conducted a directions hearing on 20 October 2020. The primary unfair dismissal application is listed for hearing on 21 December 2020 with materials to be filed in advance.

[3] The Respondent does not object to the procedural application. 1

[4] Both parties agreed that the procedural application be determined on the papers.

Background

[5] I only deal with background to provide context to this application. No hearing has yet been conducted in this matter and I make no findings of fact at this point.

[6] The unfair dismissal application was lodged by Ms Warren on 9 September 2020. It suggests her employment began on 5 October 2016, that she was notified of her dismissal on 19 August 2020 and that her dismissal took effect on 10 September 2020. The response lodged by DAC on 16 September 2020 suggests that Ms Warren’s employment began on 10 October 2016, that DAC notified Ms Warren of her dismissal on 19 August 2020 and that the dismissal was to take effect on 10 September 2020.

[7] Thus, there appears no dispute that Ms Warren was notified of her dismissal in writing on 19 August 2020. 2 This letter advised that Ms Warren’s last day of employment would be 10 September 2020. Nor is the 10 September 2020 date disputed. The irregularity arises as the unfair dismissal application was filed on 9 September 2020 while Ms Warren’s dismissal did not take effect until the following day.

Statutory framework

[8] Section 394 of the FW Act sets out the circumstances in which an application for an unfair dismissal remedy can be made:

“394  Application for unfair dismissal remedy

(1)  A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[9] Section 386 provides the following meaning of “dismissed”:

“386  Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[10] This procedural application is made under section 586. It provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

Consideration

[11] Ms Warren has made an unfair dismissal application one day prior to her dismissal taking effect. This is a procedural irregularity.

[12] The Commission has power under section 586 of the FW Act to waive this irregularity. A Full Bench in Mihajlovic v Lifeline MacCarthur 3 has observed:

“[36] Section 586(b) may be narrower than the previous provisions referred to, in that the waiver power is confined to matters of “form or manner” rather than “substance or ... form”. There is surprisingly little authority, outside the State constitutional context, as to what types of matters are encompassed by “form or manner” or like expressions such as “manner and form”. However, in O’Connor v Kinniburgh the New Zealand Supreme Court held that a statutory power to make regulations concerning the “form and manner” in which a thing is to be done may include requirements as to when the thing may be done.

[37] In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations Commission of South Australia observed that provisions of the same type as s.586(b) are “directed towards ameliorating the effect of a variance or failure to comply with a procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects”.

[38] Under s.587(1)(a), the Commission “may” dismiss an application that “is not made in accordance with this Act”. Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

[39] Section 40A of the Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the Act. Under s.2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention. We do not consider, taking into account that the Explanatory Memorandum refers to cl.587 “allowing” the dismissal of applications, that s.587(1) falls into that unusual category of statutory provisions where “may” is to be read as “must”. The provision was characterised as discretionary in nature by the Full Bench in Viavattene v Health Care Australia. If, as we conclude that it does, s.587(1) confers a discretionary power, then under paragraph (a) it is open for the Commission not to dismiss an application not made in accordance with the Act. That discretion must of course be exercised bona fide having regard to the policy and purpose of the Act.

[40] Finally, we refer to s.577(b) of the Act, which requires the Commission to perform its functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary technicalities”, and s.578(b), which requires the Commission in performing functions or exercising powers to take into account “equity, good conscience and the merits of the matter”.

[41] The objects of Part 3-2 of the Act are also relevant, particularly the establishment of procedures for dealing with unfair dismissal that are “flexible and informal” (s.381(1)(b)(i)). These provisions are not in themselves a source of power 29, but they guide the Commission in the exercise of its powers.

[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).

[43] We emphasise that the conclusions we have stated do not operate in relation to an application sought to be filed after the time limit prescribed in s.394(2)(a). As earlier stated, the highly specific and prescriptive nature of the requirements in s.394(3) applicable to the grant of an extension of time beyond the 21-day limit means that the operation of any general procedural power in that area is excluded. That this is the case is demonstrated by the Full Bench decision in ABC Transport Pty Ltd, in which it was held that an application lodged after the 21-day limit in respect of which no extension of time has been allowed under s.394(3) has not been “made” at all. It follows that s.587(1)(a) could not have any application in that circumstance. The lack of any provision of the nature of s.394(3) applicable to an application filed prematurely demonstrates that in that circumstance the Commission’s general procedural powers are available. We note however that whether such powers are exercised in a particular case will depend on a consideration of all the circumstances and it should not be assumed that the waiver of an irregularity will be automatic. The general self evident proposition is that unfair dismissal applications are to be made within the prescribed 21-day period after a dismissal takes effect.” (emphasis in original)

[13] I consider it appropriate in this matter to exercise the discretion provided by section 586 and waive the irregularity. The irregularity is minor in nature. The filing error is premature by a very short period only (one day). There is no prejudice to the employer in waiving the irregularity. Conversely, the prejudice to Ms Warren in not doing so is considerable; it would require a fresh application to be filed and an extension of time to then be sought. In that event, the Commission’s process would be burdened unnecessarily in dealing with a fresh application. This would add inefficiency to a jurisdiction intended to operate quickly, flexibly and informally. 4 Directions and a listing date have already been issued on the currently filed application.

[14] The irregularity arising from the premature filing of application U2020/12182 is waived. The date of filing will be amended from 9 September 2020 to 10 September 2020, being the date the alleged dismissal took effect. The matter will proceed in accordance with directions already issued. An Order 5 giving effect to this decision will be made in conjunction with its publication.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724351>

 1   Email from Respondent’s Representative 3 November 2020

 2   Annexure to F3 16 September 2020

 3   [2014] FWCFB 1070

 4 Section 381(1)(b) FW Act

 5   PR724352