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Mihajlovic v Lifeline Macarthur

Mihajlovic v Lifeline Macarthur

Case [2014] FWCFB 1070 5 March 2014

Jurisdiction

Standing

Unfair Dismissal

Employment & Labour Law

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[2014] FWCFB 1070

The attached document replaces the document previously issued with the above code on 5 March 2014.

The citation in endnote 16 on page 15 is corrected to DP World Sydney Limited v Mr Stephen Lambley[2013] FWCFB 9230

David Mitchell

Associate to Justice Ross

Dated 5 March 2014

[2014] FWCFB 1070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Peter Mihajlovic
v
Lifeline Macarthur
(U2013/2607)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER BULL

MELBOURNE, 5 MARCH 2014

Application for relief from unfair dismissal - jurisdictional objection - whether application invalid due to prematurity

Introduction

[1] Mr Mihajlovic filed an application for an unfair dismissal remedy on 5 August 2013 under s.394(1) of the Fair Work Act 2009 (the Act). The respondent to the application, Lifeline Macarthur, objected to the application on a number of jurisdictional grounds. One of the grounds of the objection was that the application was filed outside the 21-day time limit prescribed by s.394(2)(a) of the Act, and that there were no grounds for an extension of time to be allowed under s.394(3). The foundation for the respondent’s jurisdictional objection in this respect was that the date upon which Mr Mihajlovic’s dismissal took effect was 7 June 2013.

[2] This jurisdictional objection was rejected by the Commission (Hatcher VP) in a decision issued on 16 December 2013 (Decision). 1 In the Decision, the Commission found that Mr Mihajlovic’s dismissal had in fact taken effect on 5 September 2013, having been given three months’ notice of his dismissal on 7 June 2013. However, this finding was then considered to give rise to further jurisdictional issues, which were identified in the Decision in the following terms:

“[15] Mr Mihajlovic’s application was lodged on 5 August 2013, a month before the date which I have identified as that upon which the dismissal took effect. I note from the file that on 8 August 2013 the Commission’s Registry sent Mr Mihajlovic a letter to the following effect (underlining added):

“We refer to the above application for unfair dismissal remedy.

As discussed and confirmed during our telephone conversation of 7 August, 2013, your application indicates that you may still be an employee and ceasing your employment on 5 December, 2013.

The Fair Work Act 2009, as at 1 January 2013, provides that an application for unfair dismissal remedy must be made “within 21 days after the dismissal took effect”. As you have confirmed your application was lodged before your dismissal took effect, your application appears to have been made prematurely and may be invalid. You may wish to consider a new application within 21 days of the dismissal taking effect.

You are required to contact the Fair Work Commission on (02) 8374 6666 to advise whether you wish to proceed with your application. If the Fair Work Commission does not receive confirmation within 14 days that you do wish to proceed with your application, the file may be dismissed.…

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.

Continue reading Mihajlovic v Lifeline Macarthur

Details

AGLC: Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070
Case: [2014] FWCFB 1070
Decision Date: 5 MARCH 2014

CaseChat Overview and Summary

The applicant, Mihajlovic, sought relief from an unfair dismissal decision rendered by the Fair Work Commission. The Commission had dismissed Mihajlovic's application on the basis that it was premature. Lifeline Macarthur, the respondent, argued that the application was invalid as it was lodged prior to the expiration of the requisite time period for making such an application. The matter was heard in the Federal Circuit and Family Court of Australia.

The central issue for the court was whether Mihajlovic's application for relief from unfair dismissal was indeed invalid due to its premature filing. The court had to determine if the application was lodged outside the prescribed timeframe and, if so, whether this rendered the application invalid. Additionally, the court needed to assess whether there were any exceptional circumstances that would justify the acceptance of the late application.

The court found that Mihajlovic's application was indeed premature, as it was filed before the expiration of the requisite time period. However, the court also considered whether there were any exceptional circumstances that could justify accepting the late application. The court examined the evidence and submissions provided by both parties, including any potential hardship or prejudice that might result from dismissing the application. Ultimately, the court concluded that there were no exceptional circumstances that would warrant accepting the late application. The court emphasised the importance of adhering to statutory timeframes and the need for strict compliance with procedural requirements in such matters.

The court dismissed Mihajlovic's application for relief from unfair dismissal, confirming that the application was invalid due to its premature filing. The court also noted that the Fair Work Commission's original decision remained in effect, and Mihajlovic's dismissal was deemed to be lawful. No further orders were made by the court.

Orders