DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Doug Cooper
v
Statseeker Pty Ltd T/A Statseeker
(U2017/1090)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 MAY 2017

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - irregularity in the application waived.

[1] Mr Doug Cooper made an application for unfair dismissal remedy on 3 February 2017 under s.394 of the Fair Work Act 2009 (the Act). In its Form F3 Employer Response filed on 17 February 2017, Statseeker Pty Ltd T/A Statseeker (Statseeker) objected to the application because it was made during Mr Cooper’s notice period and prior to the effective date of his dismissal.

[2] By letter dated 16 January 2017, Mr Cooper was notified that his employment was being terminated due to alleged unsatisfactory conduct and behaviour at work and he was provided with one month’s notice of termination commencing Monday 16 January 2017. In his Form F2 Application, Mr Cooper stated that he was notified by Statseeker of his dismissal on 16 January 2017 and that it also took effect on this date, while Statseeker maintained, as outlined in its Form F3 Employer Response, that it notified Mr Cooper of his dismissal on 13 January 2017 and that it was to take effect on 15 February 2017.

[3] The matter was referred to conciliation on 10 March 2017 but it did not resolve. The matter was subsequently listed for Arbitration Conference/Hearing to commence on 22 May 2017. Following this, correspondence was sent by the Fair Work Commission (Commission) to parties on 4 April 2017 regarding Statseeker’s objection which suggested Mr Cooper’s application is invalid as it was made prior to the effective date of dismissal.

[4] This correspondence referred parties to the decision of the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur 1(Mihajlovic) as authority for the proposition that the Commission has discretion to amend the application, pursuant to s.586(b) of the Act, in “circumstances where an application has been filed before a dismissal has taken effect.” As such, parties were directed to file and serve statements, submissions and any other relevant material in support of the date upon which they say the termination of Mr Cooper’s employment took effect, by no later than 4.00pm on 11 April 2017.

[5] Further to this, parties were also advised:

“In the event of a finding by the FWC that the termination of the Applicant’s employment took effect on 15 February 2017, the Parties are further directed [to] file submissions as to whether or not, in the particular circumstances of this case, the discretion in s.586(b) of the Fair Work Act 2009 (Cth) should be exercised to waive the irregularity in the manner in which the Application was made by no later than 4.00pm on 11 April 2017.”

Submissions of Mr Cooper

[6] Mr Cooper filed submissions with the Commission in support of his application on 11 April 2017, asserting that his termination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 2654
Decision Date: 15 MAY 2017

CaseChat Overview and Summary

Doug Cooper, a former employee, brought an application for relief from unfair dismissal against his former employer, Statseeker Pty Ltd, trading as Statseeker. The Federal Circuit and Family Court of Australia was tasked with considering the merits of the application, despite a procedural error in the application process. The primary issue before the court was whether the procedural irregularity, which involved the application not being made in accordance with the Fair Work Act 2009, should prevent the court from considering the application on its merits.

The court examined the nature of the procedural irregularity and whether it was substantial enough to warrant dismissal of the application. In this instance, the court considered that the irregularity was not of a fundamental nature that would prejudice the fairness of the proceedings. It was determined that the irregularity did not impact the substantive rights of the parties, nor did it cause any unfairness or injustice. Therefore, the court exercised its discretion under section 554 of the Fair Work Act to waive the irregularity and proceed to the merits of the application.

In reaching its decision, the court gave weight to the principle that procedural rules are to be applied purposively and flexibly to achieve justice in the individual case. The court found that the purpose of the procedural requirements was to ensure that applications are properly made and that the court has all necessary information to make an informed decision. However, in this case, the irregularity did not hinder the court's ability to properly consider the application. Consequently, the court allowed the application to proceed on its merits, providing an opportunity for the applicant to present their case.

The final orders of the court were that the procedural irregularity in the application for relief from unfair dismissal was waived, and the application would proceed to be heard on its merits. The court did not make any orders regarding the merits of the application at this stage, as the case was to be further progressed and determined on its substantive merits.

Orders