Warren Albert Rose v Global Mining Services Pty Ltd
[2022] FWC 703
| [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
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