Natalie Kenny Barrington v Wall Street Pty. Ltd

[2024] FWC 2043

[2024] FWC 2043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Natalie Kenny Barrington

v

Wall Street Pty. Ltd.

(U2024/8635)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 AUGUST 2024

Application for an unfair dismissal remedy

1. On 24 July 2024, Mrs Natalie Kenny Barrington made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mrs Barrington advised in her Form F2 – Unfair Dismissal Application (Form F2) that, on 22 July 2024, she was notified that she would be dismissed from her employment with Wall Street Pty. Ltd. (the Respondent), effective 13 August 2024.

1. On 29 July 2024, the Commission left a voicemail message on Mrs Barrington’s nominated telephone number advising her that, according to the information provided in the Form F2, her application was made prematurely. On 30 July 2024, Mrs Barrington contacted the Commission, confirmed that her dismissal will take effect on 13 August 2024 and advised that she did not want to discontinue her application and relodge after the notified dismissal takes effect.

1. The circumstances are therefore:

1.Mrs Barrington’s application was filed 20 days before her dismissal is due to take effect;

2.Mrs Barrington is required to serve out her notice period, with her last day of work being 13 August 2024;

3.Mrs Barrington has been made aware of the premature nature of her application; and

4.Mrs Barrington has elected not to discontinue her application now and relodge another application at the appropriate time.

1. Section 394 of the Act provides as follows:

s.394 Application for unfair dismissal remedy

(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)

(my emphasis)

1. An application filed prematurely is properly to be characterised as one which has not been made in accordance with s.394(1) of the Act and 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.[1] 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.[2] The general proposition is that unfair dismissal applications are to be made within the prescribed 21-day period after a dismissal takes effect and it should not be assumed that the waiver of an irregularity will be automatic.[3] In the circumstances of this matter, I am not persuaded that the Commission should exercise its discretion, under s.586(b) to waive the irregularity in the premature manner in which Mrs Barrington made this application.

1. I am satisfied that Mrs Barrington’s application was not made in accordance with the Act and that I should dismiss it under s.587(1)(a) of the Act. An Order[4] to this effect will be issued with this decision. This decision and that Order do not impact Mrs Barrington’s ability to lodge a remedy for unfair dismissal application, in accordance with the requirements of s.394, if and when her dismissal takes effect.

DEPUTY PRESIDENT

[1] Mr Peter Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [42]

[2] Ibid

[3] Ibid at [43].

[4] PR777754.

Printed by authority of the Commonwealth Government Printer

<PR777753>