Lawrence Mario v ESS Compass Group Australia
[2021] FWC 3433
•15 JUNE 2021
| [2021] FWC 3433 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lawrence Mario
v
ESS Compass Group Australia
(U2021/4645)
COMMISSIONER BISSETT | MELBOURNE, 15 JUNE 2021 |
Application for an unfair dismissal remedy.
[1] On 28 May 2021 Mr Lawrence Mario (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).
[2] On the Form F2 unfair dismissal application, the Applicant stated that the date he was notified of the dismissal was 27 May 2021 and that the date the dismissal took effect was 24 May 2021.
[3] ESS Compass Group Australia (Respondent), in its Form F3 Employer Response, objected to the application alleging that Mr Mario was not dismissed and that “[t]he Applicant’s employment has not yet terminated. The cessation of the Applicant’s employment will take effect on 24 June 2021 and the Applicant is currently on leave without pay whilst his notice period is being fulfilled.”
[4] The Applicant’s application was filed on 28 May 2021, 27 days before his dismissal is due to take effect.
[5] A Full Bench of the Commission considered the issue of a premature application in Mihajlovic v Lifeline Macarthur 1 finding that, although Mr Mihajlovic’s application had not been made in accordance with the FW Act, this was not something which rendered the application invalid, but rather was an irregularity which the Commission had the power to waive under s.586(b) of the FW Act. The Full Bench said:
“[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).”
[6] On 11 June 2021 my Chambers emailed correspondence to the parties advising that it appeared the application had been made prior to the date the Applicant’s dismissal will take effect. That correspondence further noted that it was my preliminary view that I should exercise my discretion in accordance with s.586(b) of the FW Act and Mihajlovic v Lifeline Macarthur 2 to waive the irregularity and accept the premature application.
[7] On 11 June 2021 the Respondent notified my chambers that it did not object to my preliminary view.
[8] Section 586 of the FW Act states:
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.
[9] In deciding to waive the irregularity in the application made I have taken into account that the application was made after the Applicant was given notice of dismissal and that, while the Applicant is still serving the notice period given of his dismissal, he is doing so while not at work and while on leave without pay. Further, the Respondent does not object to the acceptance of the premature application. In these circumstances I consider that there would be no prejudice caused to the Respondent in waiving the irregularity.
[10] Pursuant to s.586(b) of the FW Act, I therefore waive the irregularity in the manner in which the Applicant made his application for an unfair dismissal remedy. Accordingly, the application is validly made. The application will be taken to have been made on the day after the dismissal takes effect, being 25 June 2021. An order 3 to this effect will be issued with this decision.
[11] The Commission has received correspondence from the Applicant indicating that he is unfit to participate in proceedings prior to 9 September 2021 and thereby seeking an adjournment of the conciliation of his application. This matter will be separately considered by me after hearing from the Respondent.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR730728>
1 [2014] FWCFB 1070.
2 Ibid.
3 PR730734.