Melanie White v Coles Supermarkets Australia Pty Ltd
[2022] FWC 1483
•15 JUNE 2022
| [2022] FWC 1483 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Melanie White
v
Coles Supermarkets Australia Pty Ltd
(U2022/5583)
| COMMISSIONER PLATT | ADELAIDE, 15 JUNE 2022 |
Application for relief from unfair dismissal - application not made in accordance with the Act - whether irregularity in the application should be waived.
Ms Melanie White filed an application for an unfair dismissal remedy on 20 May 2022 under s.394(1) of the Fair Work Act 2009 (the Act). Upon receipt of the application, the matter was allocated to my Chambers for determination of whether Ms White should be granted an extension of time to file her unfair dismissal application under s.394(3) of the Act. This was based on the date of termination put forward by the Applicant in her Form F2 Application, which was 28 April 2022.
Upon review of Ms White’s application, including the termination letter attached, it became apparent that Ms White’s dismissal took effect on 6 June 2022, her having been given five weeks’ notice of termination on 3 May 2022. My Associate indicated to the parties that my preliminary view was that whilst it appeared the application was not made out of time, a further issue arose as Ms White’s application appeared to be invalid by reason of it having been filed on a date before the dismissal took effect. My Associate requested that the parties indicate their position in relation to the issue of the premature application.
The Applicant indicated that she believed that the application had been made prematurely and made an application that I exercise my discretion under s.586(b) of the Act to waive this irregularity. The Respondent indicated that they did not object to this approach.
The Full Bench explored the ability of the Commission to use s.586(b) of the Act to amend an application that was made prematurely in the Decision of Mihajlovic v Lifeline Macarthur[1]. The Full Bench determined that although Mr Mihajlovic’s application had not been made in accordance with the 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 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).” (emphasis added)
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”.[2]
In the matter before me, the Respondent did not object to the application to amend the application to waive the irregularity. There appears to be no prejudice to the Respondent as a result of the premature application. If I refused to waive the irregularity, the Applicant would be forced to withdraw the current application and re-file. It is an unnecessary administrative burden on the Applicant, the Respondent, and the Commission to insist that the same substantive application be re-filed.
Pursuant to s.586(b) of the Act, I believe it is an appropriate exercise of my discretion to waive the irregularity in the manner in which Ms White made her application for an unfair dismissal remedy. The matter will be re-allocated to one of the Commission’s staff conciliators for conciliation.
COMMISSIONER
[1] [2014] FWCFB 1070.
[2] Ibid at [44].
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