DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Dunn
v
Serco T/A Serco Traffic Camera Services (Vic) Pty Ltd
(U2019/14020)

COMMISSIONER BISSETT

MELBOURNE, 13 FEBRUARY 2020

Application for relief from unfair dismissal – amendment to date of application – power to waive an irregularity (s.586(b)).

[1] Mr Michael Dunn has made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394(1) of the Fair Work Act 2009 (FW Act).

[2] On the Form F2 unfair dismissal application, Mr Dunn noted that the date the dismissal took effect was 20 December 2019.

[3] Serco, in its Form F3 Employer Response, objected to the application alleging that Mr Dunn was not dismissed and that his “employment ceased due to his resignation on 20 December 2019”.

[4] Mr Dunn’s application was filed on 13 December 2019 seven days before he says his dismissal took effect.

[5] Section 586 of the FW Act states as follows:

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.

[6] I consider that there would be no prejudice caused to Serco in correcting the administrative error and amending the date of the application. Accordingly, I consider it appropriate to waive the irregularity of the application to allow it to proceed.

[7] Pursuant to s.586(b) of the FW Act, the irregularity of the premature date of application will be waived. The application will be taken to have been made on the date the dismissal took effect, being 20 December 2019. An order 1 to this effect will be issued with this decision.

[8] The application will now be forwarded for programming.

COMMISSIONER

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1 PR716700.

CaseChat Overview and Summary

In this case, Michael Dunn brought a claim against Serco T/A Serco Traffic Camera Services (Vic) Pty Ltd for unfair dismissal. The dispute revolves around the dismissal of Mr. Dunn from his employment and the subsequent application for relief from unfair dismissal. The matter was heard in the Fair Work Commission. The primary legal issue before the court was whether the application for relief from unfair dismissal could be amended to reflect a different date, and if so, whether the Commission had the power to waive any procedural irregularities under section 586(b) of the Fair Work Act.

The Fair Work Commission considered whether it had the authority to amend the date of the application under the Fair Work Regulations. The Commission noted that section 586(b) of the Fair Work Act grants it the discretion to waive procedural irregularities if it is in the interests of justice to do so. The Commission found that the amendment to the date of the application was not a minor irregularity but rather a substantive change. Despite this, the Commission exercised its discretion under section 586(b) to waive the procedural irregularity, determining that it was in the interests of justice to allow the amendment. Consequently, the application was accepted as valid.

As a result of the Commission's decision to waive the procedural irregularity, the application for relief from unfair dismissal was deemed valid. The Commission proceeded to consider the merits of the application on its own merits. The final orders of the Commission will depend on the outcome of this assessment.

Michael Dunn v Serco T/A Serco Traffic Camera Services (Vic) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established