Gee v Tasmanian Ports Corporation Pty Ltd

[2016] FWC 1133

[2016] FWC 1133

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Warwick Gee
v
Tasmanian Ports Corporation Pty Ltd T/A Tasports
(U2015/11920)
COMMISSIONER RYAN	MELBOURNE, 22 FEBRUARY 2016

Application for relief from unfair dismissal - jurisdiction – power to waive an irregularity

(s.586(b)) regarding application lodged before dismissal was effective.

[1]        The application in this matter was filed on 21 September 2015. The application

identified that the Applicant had been given notice of his dismissal on 28 August 2015 and

that the dismissal took effect on 24 September 2015.

[2]        On 14 October 2015 the Respondent through its lawyers filed a Form F4 Objection to

the application which raised two objections: firstly, that the Applicant had not been employed

for the minimum employment period and secondly, that:

“2. At the time the Applicant filed the Unfair Dismissal Application on 21

September 2015 (Application) the Applicant had not been dismissed:

(a) the Applicant’s dismissal took effect when he was removed from the

employment roster in accordance with Tasports Port Latta Loading Crews and

Lines Boat Crews Agreement 2013;

(b) the Applicant was given 28 days’ notice of removal from the

employment roster on 28 August 2015; and

(c) the Applicant was advised that the removal from the roster took effect

on 24 September 2015;

(d)	the Application was filed 3 days before the Applicant’s dismissal took
effect.”

[3]        The Applicant subsequently filed a second application for an unfair dismissal remedy

on 23 October 2015 (U2015/12440). Given that the dismissal of the Applicant took effect on

24 September 2015, this second application was clearly out of time. As part of the reasons for

filing an application out of time the Applicant said in its F2:
[2016] FWC 1133

“1. This supplementary application is made in order to resolve a jurisdictional

objection made by the respondent on 14 October 2015.

2.          The applicant originally made an application on 21 September 2015. That

matter was provided with matter number U2015/11920

3.          By way of letter from the respondent dated 28 August 2015 (attached to this

application and the application made on 21 September 2015), the applicant's

termination was to take effect on 24 September 2015 as the applicant was advised:

"You will be removed from the employment roster effective 24 September 2015."

4.          The respondent appears to be making a jurisdictional objection to the effect

that the applicant's original application is not valid because the applicant had not been

dismissed at the time the application was filed.

5.          The applicant contends that if required the Fair Work Commission may allow a

correction to an application pursuant to its power contained ins 586 of the Fair Work

Act 2009, that provides:

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.

6.             The A further contends that the original application of 21 September 2015 or

this application made on 23 October 2015 should be treated as valid and will provide

further submissions if necessary.”

[4]        Both applications were listed for mention before me on 20 November 2015.

[5]        A further mention was held in relation to both matters on 27 November 2015. As a

result of that mention the Commission issued directions to the parties in relation to the filing

and serving of material in relation to both of the objections raised by the Respondent in

relation to the application in the present matter. The Directions required the Applicant to file

and serve submissions and material in relation to its contention that the Commission has the

power to and should exercise the power to amend the application. The Respondent was

directed to file and serve submissions and material as to the power of the Commission to

amend the application. Directions were also given in relation to the first objection raised by

the Respondent. The final date for the filing of materials by both parties was 17 December

2015.

[6]        On 8 December 2015, the date upon which the Respondent was to file and serve

submissions and material in relation to the jurisdictional objection that the Applicant had not

served the minimum employment period, the Respondent advised both the Commission and

the Applicant that the Respondent withdrew its jurisdictional objection that the Applicant had

not served the minimum employment period.

[2016] FWC 1133

[7]        The Commission convened a further mention with the parties on 18 December 2015 to

discuss further progress of the matter. The mention was conducted by way of a telephone

conference with the parties. The mention was not recorded.

[8]        On 21 December 2015 the Respondent’s lawyer, by way of an email to the

Commission (copied to the Applicant’s union representative) sought that I recuse myself from

determining the second objection raised by the Respondent on the basis of apprehended bias

given a comment made by me during the mention on 20 November 2015.

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[9] The application for recusal was considered by the Commission and dismissed .

[10]      Both parties had filed and served their respective cases in relation to the objection

raised by the Respondent and both parties agreed that the Commission decide the objection on

the papers.

[11]      The Respondent concedes that the Commission has the discretionary power pursuant

to s.586 to waive the irregularity in relation to the application filed in this matter but contends

that the Commission should not exercise that discretion and should dismiss the application

because the Applicant had not been dismissed at the time the application was made. The

Applicant contends that the Commission should exercise its discretionary power under s.586

and permit the application to proceed even though it was filed before the Applicant was

dismissed. Section 586 of the Act provides as follows:

“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.”

Relevant Authorities

[12]      Both the Applicant and Respondent have drawn attention to the decision of the

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Commission in Mihajlovic v Lifeline Macarthur where a Full Bench of the Commission

addressed the issue of an unfair dismissal application which had been filed prematurely as

follows:

“[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

[2016] FWC 1133

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.” (citations omitted)

[13]      The Full Bench remitted the matter to Hatcher VP “to determine whether the

discretion in s.586(b) should be exercised in the particular circumstances of this case and if

necessary to waive the irregularity in the manner in which the application was made”. In his

decision Hatcher VP relevantly said:

“[5] The respondent submitted that because Mr Mihajlovic knew at the time that he

lodged his application that his dismissal had not yet taken effect, the discretion to waive

the irregularity under s.586(b) should not be exercised in his favour. It further submitted

that his application concerned his dissatisfaction as to whether he had been paid his

statutory entitlements, which was an issue not capable of resolution by the Commission.

Although not expressly stated, I took this as a submission that waiver should not be

granted because the application lacked substantive merit and was doomed to fail.

[6]           The practical position in the matter before me is that there is no doubt that Mr

Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed

within the meaning of that expression in s.386 of the Act. The Commission therefore

has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim

for an unfair dismissal remedy. There is no suggestion that the fact the application was

filed prematurely has caused any prejudice to the respondent. It has necessarily been on

notice at all times since his dismissal took effect that Mr Mihajlovic contested his

dismissal and sought an unfair dismissal remedy. This is not a situation whereby

“exceptional circumstances” have to be demonstrated in order for a waiver to be

granted, by contrast to an extension of time application under s.394(3). Prima facie,

there is a strong case for the waiver to be granted.

…

[8]           I am not prepared to conclude that his application is without merit. Its grounds

are not confined to the issue of the payment of statutory entitlements; he contends for

example that there was no valid reason for his dismissal and that he was (in substance)

denied procedural fairness.

[2016] FWC 1133

[9]           If I were to dismiss Mr Mihajlovic’s current application, he would be

compelled to make an application under s.394(3) for a further period in which to file the

same application a second time. Such an application would undoubtedly be opposed by

the respondent, and might well not succeed given the necessity to demonstrate

exceptional circumstances. Further proceedings involving effort, inconvenience and cost

to both parties would be necessary, and might result in a significant injustice being done

to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a

perverse outcome, and that the discretion in s.586(b) should be exercised in Mr

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Mihajlovic’s favour.”

[14]      There are a number of differences in the circumstances of the present matter and those

considered in Mihajlovic v Lifeline Macarthur. In the present matter the application was

prepared and filed by the Applicant’s union, The Maritime Union of Australia (MUA), in

circumstances where the Applicant had been removed from the workplace on 17 August 2015

and that the Applicant had been given notice by the Respondent on 28 August 2015 that the

Applicant would be removed from the employment roster effective 24 September 2015 but

that the Applicant would not be allocated any shifts during the notice period. The Applicant

was effectively off work without pay for 5 weeks before the dismissal date.

[15]      The Applicant did file a second application once the Respondent identified its

objection to the first application. In the present matter the Respondent has made clear that it

would oppose an extension of time being granted to the Applicant in relation to his second

application which is clearly out of time.

[16]      The Respondent contends that the Commission should not exercise its power under

s.586 for three specific reasons: firstly, the application is without merit; secondly, there is no

remedy available to the Applicant in relation to the application; thirdly, there will no injustice

to the Applicant if the application is dismissed.

[17]      The Applicant’s contentions are somewhat disjointed, but the Applicant clearly

contends that the same inconvenience, cost and significant injustice as was identified by

Hatcher VP in Mihajlovic would materialise if the Commission did not exercise its discretion

under s.586 in this matter. In considering whether to exercise the discretion under s.586 the

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Commission should have regard to all of the circumstances of the matter.

[18]      The MUA contends that the circumstances of the present matter permit of three

possible dismissal dates:

(1) 28 August 2015 – the date of the letter advising the Applicant he would be removed

from the roster,

(2)	24 September 2015 – the date the Applicant was removed from the roster,
(3)	4 September 2015 - the date the Applicant would be deemed to have received the letter

dated 28 August 2015.

[19]      The determination of the actual date of termination is not difficult in the circumstances

of the present matter. The discussion of the relevant authorities undertaken by Hatcher VP in

Mihajlovic (No. 1) in relation to payment in lieu of notice and determining the actual

termination date is apposite. In the present matter the terms of the Port Latta Loading Crews

and Lines Boat Crew Agreement 2008 (the Agreement) applied to the Applicant. Pursuant to

clause 8 of the Agreement the Respondent could only remove the Applicant from the
[2016] FWC 1133

employment roster by giving the Applicant 28 days’ notice of removal from the employment

roster. The letter from the Respondent to the Applicant dated 28 August 2015 removing the

Applicant from the employment roster as from 24 September 2015 met the requirements of

clause 8 of the Agreement. In the present matter it is clear that the Respondent intended to

comply with its obligations under clause 8 of the Agreement and that the Applicant would

remain on the employment roster until 24 September 2015. Employment effectively ended on

that date and not earlier.

[20]      Two of the arguments of the Respondent as to why the Commission should not

exercise its discretion under s.586 both go to the merits of the substantive unfair dismissal

application. In circumstances where the Commission has not had the benefit of considering

the merits of the substantive application as no evidence has yet been presented by either side

it is not appropriate that I consider the merits of the case. In a case where it was obvious from

an examination of the application (Form F2) and the response (Form F3) that the application

was highly unmeritorious then it may very well be a factor to take into account in refusing to

exercise the discretion under s.586. In some respects the argument of the Respondent is the

reverse of the consideration of merit in relation to applications for extension of time. The

approach adopted in extension of time matters raises similar issues to those in the present

matter. I accept that the merits of the Applicant’s substantive application are relevant in

considering the exercise of the discretion pursuant to s.586 however in the present matter in

the absence of detailed evidence as to the merits of the Applicant’s case it appears that on the

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face of the application the Applicant has an arguable case both as to merits and as to remedy.

[21]      In the present matter the Applicant would suffer a significant injustice if he could not

have the opportunity of having his substantive application heard. The Respondent has been on

notice since the application was filed and would not suffer an injustice if the application was

to proceed. With the Applicant’s second application clearly out of time and, as the

Respondent has indicated its intention to oppose any grant of an extension of time in that

matter, it is clear that if the present application does not proceed the Applicant may very well

be left with no opportunity to proceed before the Commission.

[2016] FWC 1133

[22]      The Commission is satisfied, having taken into account the circumstances of the

present matter, that the discretion available to the Commission under s.586(b) be exercised by

waiving the irregularity in this matter, namely that the application was filed before the date of

dismissal, and allowing the application to proceed. The parties will be advised in due course

as to further proceedings in this matter.

COMMISSIONER

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1

[2016] FWC 565.

2

[2014] FWCFB 1070.

3

[2014] FWC 1871.

4

[2014] FWCFB 1070 at para 43.

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See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300; Haining v Deputy President Drake (1998)

87 FCR 248, 250; Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10

November 2000).