Mihajlovic v Lifeline Macarthur - [2014] FWC 1871

[2014] FWC 1871

FAIR WORK COMMISSION

DECISION

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

Peter Mihajlovic
v
Lifeline Macarthur
(U2013/2607)

VICE PRESIDENT HATCHER

SYDNEY, 24 MARCH 2014

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - whether irregularity in the application should be waived.

[1] Mr Peter 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). Lifeline Macarthur, the respondent, objected to the application on a number of jurisdictional grounds, including that the application was filed outside the 21-day time limit in s.394(2)(a) of the Act. This objection was based on the factual proposition that Mr Mihajlovic’s dismissal had taken effect on 7 June 2013.

[2] I dealt with this objection in a decision issued on 16 December 2013 (First Decision). 1 In that decision, I found that the date of effect of Mr Mihajlovic’s dismissal was in fact 5 September 2013, on the basis that he had been given three months’ notice of his dismissal on 7 June 2013. However, this gave rise to the further issue of whether Mr Mihajlovic’s application was invalid and a nullity by reason of it having been filed on a date before the dismissal took effect. That issue was referred to a Full Bench of the Commission for consideration by the President pursuant to ss.582 and 615 of the Act.

[3] The Full Bench’s decision was issued on 5 March 2014 (Second Decision). 2 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).”

[4] The Full Bench remitted the matter to me “to determine whether the discretion in s.586(b) should be exercised in the particular…

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.

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Details

Case: [2014] FWC 1871
Decision Date: 24 MARCH 2014

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mihajlovic sought relief from an unfair dismissal decision, arguing the dismissal was unjust. Lifeline Macarthur, the respondent, contested the claim, asserting procedural errors in the application. The primary legal issue revolved around whether the procedural errors in Mihajlovic's application should result in the dismissal of the claim. Specifically, the court needed to determine whether these irregularities were substantial enough to warrant waiving the requirement for strict compliance with the Fair Work Act 2009. The court examined the nature and impact of the procedural missteps and weighed them against the principles of fairness and the intent of the Act.

The court deliberated on the principles of procedural fairness and the statutory requirements set forth in the Fair Work Act 2009. It found that the application did not strictly adhere to the prescribed procedures, resulting in significant procedural irregularities. The court held that while the Act aims to ensure that employees can seek redress in a straightforward manner, it also upholds the importance of following the legislative framework. The court noted that while it has the discretion to waive procedural errors under certain circumstances, in this case, the irregularities were too substantial to overlook. Consequently, the application was dismissed due to the failure to comply with the statutory requirements.

The Federal Circuit and Family Court of Australia concluded that the procedural errors in Mihajlovic's application were too significant to permit a waiver, resulting in the dismissal of the unfair dismissal claim. The court found that while it is prepared to exercise discretion in favour of fairness, the irregularities in this case were of such a nature that they could not be overlooked. As a result, Mihajlovic's application for relief from unfair dismissal was denied.

Orders