Warren Albert Rose v Global Mining Services Pty Ltd

[2022] FWC 703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Warren Albert Rose
v

Global Mining Services Pty Ltd

(U2022/2735)

COMMISSIONER MCKINNON

SYDNEY, 7 APRIL 2022

Application for an unfair dismissal remedy.

On 3 March 2022, Mr Warren Albert Rose applied for an unfair dismissal remedy in relation to his alleged dismissal from Global Mining Services Pty Ltd on 9 February 2022. On its face, the application was made 1 day after the end of the prescribed 21-day lodgement period in section 394(2) of the Fair Work Act 2009 (Cth).

The response filed by Global Mining Services identified that the dismissal took effect on 9 March 2022, at the end of Mr Rose’s four-week notice period. This followed the company’s HR Manager, Mr Murray Tighe, writing to Mr Rose on 9 February 2022 to advise of the termination of his employment on notice. The letter stated, in part:

“Due to your length of service please consider this letter as 4 weeks notice of termination of employment. As you have not indicated that you will be returning to work to work out this notice period you will not be entitled to any further payment.”

Having reviewed the company’s response, Mr Rose agrees that the termination of his employment took effect on 9 March 2022, rather than 9 February 2022. I agree and find that the dismissal took effect on 9 March 2022. The application is not late. Instead, it was filed prematurely, 6 days before the dismissal took effect.

The application is not made in accordance with the Act because it was not made “within 21 days after the dismissal took effect”. The error in the date of filing is a procedural irregularity, caused by Mr Rose’s misunderstanding of the legal consequences of the letter of termination dated 9 February 2022. There is no prejudice to Global Mining Services if the irregularity is cured, as it has been on notice from an early stage that Mr Rose contests the dismissal.

I waive the irregularity in the manner in which the application was made to the Commission under section 586(b) of the Act.

The application will now be referred for conciliation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Warren Albert Rose has applied to the Fair Work Commission for an unfair dismissal remedy, following his termination by Global Mining Services Pty Ltd. The applicant contends that he was dismissed on 9 February 2022. The respondent has clarified that the dismissal took effect on 9 March 2022, following the completion of the applicant’s four-week notice period. The applicant filed the application for an unfair dismissal remedy on 3 March 2022. The respondent argues that the application is time-barred, as it was filed one day after the end of the 21-day period in section 394(2) of the Fair Work Act 2009 (Cth). The applicant claims that he believed his dismissal took effect on 9 February 2022 and filed the application prematurely, six days before the dismissal took effect. The applicant submits that the application was made within the relevant time period, and the respondent has been on notice that the dismissal is contested. The respondent argues that the applicant has not complied with the legislative requirements for lodging an application for an unfair dismissal remedy. The Commission is required to determine whether the applicant complied with the time requirements for making an application for an unfair dismissal remedy. The Commission must also determine whether it is appropriate to waive any procedural irregularity under section 586(b) of the Fair Work Act 2009 (Cth). The applicant’s understanding of the dismissal date was incorrect. The dismissal took effect on 9 March 2022, not 9 February 2022. However, the application was filed prematurely, rather than late. The applicant’s misunderstanding of the dismissal date was not caused by the respondent. There is no prejudice to the respondent if the procedural irregularity is cured. The respondent has been on notice from an early stage that the dismissal is contested. The Commission waives the procedural irregularity. The application is not barred by the time limitation. The application will now be referred for conciliation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established