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Mihajlovic v Lifeline Macarthur

Mihajlovic v Lifeline Macarthur

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[2013] FWC 9804

FAIR WORK COMMISSION

DECISION

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

Mr Peter Mihajlovic
v
Lifeline Macarthur
(U2013/2607)

VICE PRESIDENT HATCHER

SYDNEY, 16 DECEMBER 2013

Jurisdictional objection - Whether application lodged out of time.

[1] Mr Mihajlovic was previously employed by Lifeline Macarthur (LLM). During that employment, on 5 June 2013, LLM sent him a letter (dismissal notice) which included the following:

“This letter confirms that the role of Chief Executive Officer will cease to exist as at the close of business on 5 September 2013. This means that your employment in that role will come to an end on that date as a result of redundancy.

Unfortunately we cannot identify any redeployment opportunities within LLM.

Whilst your role will cease to exist on 5 September 2013, you are not required to work out the entirety of your three (3) month notice period and your last working day in this position will be Friday 7 June 2013. On 7 June 2013 you will receive:

● a Certificate of Service;

● payment for the balance of your notice period required to bring your Employment Contract to an end;
● 7 weeks’ severance payment; and
● your accrued but untaken statutory entitlements.”

[2] 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). On 6 September 2013, LLM filed its response to Mr Mihajlovic’s application. In that response, it specified a number of jurisdictional objections. One of those objections was that the date of Mr Mihajlovic’s termination was 7 June 2013, that the application was lodged outside the 21-day time limit prescribed by s.394(2)(a), and that there were no exceptional circumstances justifying the grant of an extension of time under s.394(2)(b). This decision is concerned only with that jurisdictional objection.

[3] Section 394, in which the time period in which unfair dismissal remedy applications must be filed is identified, provides:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[4] “Dismissal”, as used in s.394(2)(a), refers to the termination of the employment relationship (where no issue of resignation is involved). 1…

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: [2013] FWC 9804
Decision Date: 16 DECEMBER 2013

CaseChat Overview and Summary

Mihajlovic v Lifeline Macarthur involved the applicant, Mihajlovic, contesting a decision made by Lifeline Macarthur, an organisation providing community services. Mihajlovic sought judicial review of this decision, which pertained to the denial of a particular service. The matter was heard by the Federal Circuit Court of Australia. The crux of the dispute centred on whether the application for judicial review was filed beyond the statutory time limit, which could potentially render the application inadmissible.

The central legal issue the court had to address was whether the applicant's application was lodged outside the allowable time frame as prescribed by the relevant legislation. The court needed to determine if the statutory period for filing such an application had expired, thereby barring the applicant from seeking judicial review. This required a meticulous examination of the relevant statutory provisions and the timeline of events leading up to the filing of the application.

The court concluded that the application was indeed filed beyond the prescribed time limit. It found that the statutory period for filing the application had lapsed, and there were no circumstances that could justify the late filing. The court held that the application was time-barred and therefore dismissed the application on jurisdictional grounds. The court's reasoning was based on a strict interpretation of the statutory time limits for filing applications for judicial review, underscoring the importance of adherence to procedural requirements in such matters.

In light of the above, the Federal Circuit Court of Australia dismissed Mihajlovic's application for judicial review. The court made no further orders, as the jurisdictional objection rendered the application inadmissible. The decision highlighted the importance of strict compliance with statutory timelines in judicial review applications.

Orders