[2014] FWCFB 1070
The attached document replaces the document previously issued with the above code on 5
March 2014.
The citation in endnote 16 on page 15 is corrected to DP World Sydney Limited v Mr Stephen
Lambley [2013] FWCFB 9230
David Mitchell
Associate to Justice Ross
Dated 5 March 2014
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Mihajlovic
v
Lifeline Macarthur
(U2013/2607)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER BULL MELBOURNE, 5 MARCH 2014
Application for relief from unfair dismissal - jurisdictional objection - whether application
invalid due to prematurity
Introduction
[1] 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). The respondent to the application,
Lifeline Macarthur, objected to the application on a number of jurisdictional grounds. One of
the grounds of the objection was that the application was filed outside the 21-day time limit
prescribed by s.394(2)(a) of the Act, and that there were no grounds for an extension of time
to be allowed under s.394(3). The foundation for the respondent’s jurisdictional objection in
this respect was that the date upon which Mr Mihajlovic’s dismissal took effect was 7 June
2013.
[2] This jurisdictional objection was rejected by the Commission (Hatcher VP) in a
decision issued on 16 December 2013 (Decision).1 In the Decision, the Commission found
that Mr Mihajlovic’s dismissal had in fact taken effect on 5 September 2013, having been
given three months’ notice of his dismissal on 7 June 2013. However, this finding was then
considered to give rise to further jurisdictional issues, which were identified in the Decision in
the following terms:
“[15] Mr Mihajlovic’s application was lodged on 5 August 2013, a month before the
date which I have identified as that upon which the dismissal took effect. I note from
the file that on 8 August 2013 the Commission’s Registry sent Mr Mihajlovic a letter
to the following effect (underlining added):
“We refer to the above application for unfair dismissal remedy.
As discussed and confirmed during our telephone conversation of 7 August,
2013, your application indicates that you may still be an employee and ceasing
your employment on 5 December, 2013.
[2014] FWCFB 1070
DECISION
E AUSTRALIA FairWork Commission
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2
The Fair Work Act 2009, as at 1 January 2013, provides that an application for
unfair dismissal remedy must be made “within 21 days after the dismissal took
effect”. As you have confirmed your application was lodged before your
dismissal took effect, your application appears to have been made prematurely
and may be invalid. You may wish to consider a new application within 21
days of the dismissal taking effect.
You are required to contact the Fair Work Commission on (02) 8374 6666 to
advise whether you wish to proceed with your application. If the Fair Work
Commission does not receive confirmation within 14 days that you do wish to
proceed with your application, the file may be dismissed. The enclosed Notice
of Discontinuance should be signed and returned to this office within 14 days if
you do not wish to proceed.”
[16] The contention in the above letter that Mr Mihajlovic’s application was made
prematurely and might be invalid has not been raised as a jurisdictional objection by
LLM. I consider that the Registry’s letter raises two legal questions:
(1) Does s. 394(2)(a) establish a time limitation before which applications may
not be filed in addition to a time limitation after which applications may not be
filed?
(2) If the answer to question (1) is “yes”, is an application lodged prematurely
invalid, or may it be regularised under s.586 or any other applicable provision
of the Act?”
[3] The Commission directed that further submissions be filed by the parties by 23
December 2013, in respect of the questions of law identified. Each party lodged submissions
in accordance with this direction.
[4] On 9 January 2014, the President of the Commission ordered pursuant to ss.582 and
615 of the Act that the jurisdictional issue identified in the Decision be referred to a Full
Bench for determination. On 13 January 2014, this Full Bench issued directions for the
determination of the matter, in which it invited the Commonwealth and the Peak Industry
Councils (ACCI, Ai Group and the ACTU) to file submissions in relation to the matter, and
gave the parties an opportunity to reply to any such submissions. The Full Bench’s directions
identified some further matters which it considered to be relevant to the two questions of law
identified in paragraph [16] of the Decision as follows:
“[6] The first of the two questions identified in paragraph 2 above may raise the
following subsidiary questions of statutory interpretation:
(1) Is paragraph 394(2)(a) to be interpreted by reference to subsection
394(1)(a), which identifies the circumstances in which a competent
unfair dismissal application may be made?
(2) Does the expression ‘A person who has been dismissed’ in subsection
394(1)(a) include a person who has been given notice of dismissal
where the notice period has not yet expired, having regard to the
definition of ‘dismissed’ in s.386?
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(3) In paragraph 386(1)(a) does the expression ‘the person's employment ...
has been terminated on the employer's initiative’ refer to the act of
termination by the employer or the actual termination of the employment
relationship?
(4) Is the use of the expression ‘A person who has been dismissed’ in
subsection 394(1)(a) to have a different connotation to the expression
‘after the dismissal took effect’ in paragraph 394(2)(a)?
...
[8] As to the second question, the following subsidiary questions may arise in
respect of s.586:
(1) Does subsection 586(1) permit the ‘correction or amendment’ of an
application by way of alteration of the date upon which it was made or
lodged?
(2) What constitutes an ‘irregularity in the form or manner in which an
application is made’ that may be waived by the Commission under
subsection 586(b)?
(3) Does the discretion in paragraph 587(1)(a) to dismiss an application that
‘is not made in accordance with this Act’ indicate that such an application
is not automatically invalid?”
[5] Only the ACTU filed a submission in response to the Full Bench’s invitation to the
Commonwealth and Peak Industry Councils for submissions. The parties each filed a
submission in response to the ACTU’s submission.
Submissions
[6] Mr Mihajlovic submitted that s.394(2) establishes a time limit after which applications
could not be made, but not one before which applications could be made. It is submitted that
there was no policy reason why a person dismissed on notice could not apply before the
dismissal took effect, which explained why that situation was not addressed specifically in the
Act. The application was therefore not premature; it would only be premature if no “dismissal
attempt” had yet been made. In the alternative, the applicant submitted that if the application
was filed prematurely, this could be rectified under s.586.
[7] The respondent, Lifeline Macarthur, submitted that ss.394 and 386 of the Act, properly
construed, establish a requirement that a person must actually have been dismissed, with that
dismissal having taken effect, before any application for an unfair dismissal remedy could be
lodged. Absent that requirement being satisfied, the Commission had no jurisdiction to accept
the application, and consequently Mr Mihajlovic’s application was invalid. Section 586 of the
Act did not provide power to remedy the prematurity of the application, since it was
concerned with merely procedural and not jurisdictional defects.
[8] The ACTU submissions were to similar effect as those of the respondent. The ACTU
submitted that s.394(2) established an anterior as well as a posterior time limitation on the
filing of applications for an unfair dismissal remedy, with the anterior limit preventing the
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4
filing of applications prior to a dismissal taking effect. It further submitted that the power in
s.586 of the Act was not available to correct the position, because it was “administrative only
and cannot be used to regularise or retrospectively cure a fundamental defect in the
application”.
Consideration
Meaning of “Dismissal”
[9] Part 3-2 of the Act contains the scheme of provisions dealing with unfair dismissal.
Division 5 of Part 3-2 is titled “Procedural matters”. Section 394 is the first provision falling
within Division 5, and provides:
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to
a dismissal if an application or complaint has been made in relation to the dismissal
other than under this Part.
(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
(c) any action taken by the person to dispute the dismissal; 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.
[emphasis added]
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[10] It is apparent that subsection (1) of s.394 establishes as the basic qualifying criterion
for the making of an application that the applicant has to be “a person who has been
dismissed”. Section 386(1) guides the interpretation of s.394(1) by defining the circumstances
in which a person can be said under the Act to have been dismissed in the following terms:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
[emphasis added]
[11] Section 386(1) is subject to exceptions in subsections (2) and (3) which are not
presently relevant.
[12] Only paragraph (a) of s.394(1) is relevant to our consideration in this case. The
meaning of the expression “termination at the initiative of the employer” in the context of the
termination of employment provisions in Division 3 of Part VIA of the Industrial Relations
Act 1988 (Cth) was considered by a Full Court of the Industrial Relations Court of Australia
in Mohazab v Dick Smith Electronics Pty Ltd (No 2)2. The explanatory memorandum for the
Fair Work Bill 2009 stated in respect of clause 394 of the Bill that cl.386(1)(a) was “intended
to capture case law relating to the meaning of 'termination at the initiative of the employer'
(see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200)”.
[13] The expression “termination at the initiative of the employer” did not actually appear
in Division 3 of Part VIA of the Industrial Relations Act 1988; s.170EA only referred to the
termination of the employee’s employment. However, s.170CA(1) stated that the object of the
Division was to give effect, inter alia, to the international Termination of Employment
Convention, and in that convention termination of employment was defined as meaning
“termination at the initiative of the employer”. It was in that context that the Full Court in
Mohazab discussed the meaning of that expression. After referring to dictionary definitions of
the word “initiative”, the Full Court said3:
“These definitions reflect the ordinary meaning of the word "initiative". Viewed as a
whole, the Convention is plainly intended to protect workers from termination by the
employer unless there is a valid reason for termination. It addresses the termination of
the employment relationship by the employer. It accords with the purpose of the
Convention to treat the expression "termination at the initiative of the employer" as a
reference to a termination that is brought about by an employer and which is not
agreed to by the employee. Consistent with the ordinary meaning of the expression in
the Convention, a termination of employment at the initiative of the employer may be
treated as a termination in which the action of the employer is the principal
contributing factor which leads to the termination of the employment relationship. We
proceed on the basis that the termination of the employment relationship is what is
comprehended by the expression termination of employment: Siagian v Sanel [1994]
IRCA 2; (1994) 122 ALR 333 at 351; [1994] IRCA 2; (1994) 1 IRCR 1 at 19. In
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many, if not most, situations the act of the employer that terminates the employment
relationship is not only the act that puts in train the process leading to its termination
but is, in substance, the entire process. An example would be a situation where the
employer decided to dismiss an employee and did so orally or in writing with
immediate effect. Other situations may be more complex as exemplified by the
circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 125
ALR 355 where an employee had given written notice purporting to terminate the
employment relationship. The notice was not reasonable but was accepted by the
employer which later refused to allow the employee to withdraw the notice. A question
arose as to whether that was a termination of the employment at the initiative of the
employer and his Honour held it was. His Honour said at 372:
‘I have already said that Div 3 concerns termination at the initiative of the
employer. The respondent submits that 'initiate' means 'to begin, commence,
enter upon; to introduce, set going, or initiate': see Shorter Oxford English
Dictionary. In this matter, it is submitted, it was the applicant and not the
respondent that initiated the termination by writing the letter of 18 May. This,
in my opinion, gives the expression 'termination' in the Act, read in conjunction
with Art 3 of the Convention which speaks of 'termination ... at the initiative of
the employer', a narrow meaning that was not intended. A principal purpose, if
not the sole purpose, of Div 3 is to provide an employee with a right to seek a
remedy in circumstances where the employee did not voluntarily leave the
employment. An employee may do some act which is the first in a chain of
events that leads to termination. An example would be an employee who
engaged in misconduct at work which ultimately led to the employer
dismissing the employee. However, that situation and the present are not
situations where the termination was at the initiative of the employee. In both
instances the step or steps that effectively terminated the employment or
purported to do so were taken by the employer.’
In these proceedings it is unnecessary and undesirable to endeavour to formulate an
exhaustive description of what is termination at the initiative of the employer but
plainly an important feature is that the act of the employer results directly or
consequentially in the termination of the employment and the employment relationship
is not voluntarily left by the employee. That is, had the employer not taken the action
it did, the employee would have remained in the employment relationship.”
[14] It is clear that the Full Court, following Siagian v Sanel4, regarded termination of
employment as referring to the actual termination of the employment relationship, so that a
“termination at the initiative of the employer” was taken as referring to a situation where the
employment relationship had terminated and the action of the employer was the principal
contributing factor in bringing that about. Although Mohazab was not directly concerned with
the identification of the point in time at which a termination at the initiative of the employer
had occurred, the reasoning of the Full Court quoted above contains the necessary proposition
that the employment relationship must have come to an end.
[15] That position is confirmed by an analysis of the judgment of the Industrial Relations
Court (Wilcox CJ) in Siagian v Sanel. In that case, the applicant’s capacity to access the
termination of employment provisions of the Industrial Relations Act 1988 depended upon the
date upon which the applicant’s employment was terminated. Division 3 of Part VIA, under
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which relief was sought, had commenced on 30 March 1994; the applicant had been told by
his employer on 29 March 1994 that his employment was terminated and was paid an amount
representing salary up until 15 April 1994. After determining that it was the date of the
termination of the employment relationship rather than the date of the termination of the
employment contract that was the relevant date, the Court then considered an argument put by
counsel for the applicant that the payment of salary to the applicant meant that the
employment extended to 15 April 1994. The Court framed the question to be determined in
the following way5:
“Counsel's second argument is that, because of the payment in lieu of notice, the
termination did not occur on 29 March but at the date of expiration of the period for
which payment was made, 15 April. If this argument is correct, s.170EE orders are
available.
This argument also raises a complex problem. The problem arises because of the
ambiguity inherent in the words "payment in lieu of notice". The ambiguity was
pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196:
"... it is clear from the authorities cited to us, ... all of which are confirmed by
the experience of our lay members, that the expression 'payment in lieu of
notice' is regularly used throughout industry in one or other of two quite
different senses. The first, which is the grammatically correct one, is when it is
used to describe the payment to an employee whom it is proposed to dismiss
summarily of a lump sum representing compensation for the wages or salary
which he would have received if he had been given the notice to which he is
entitled by law. The second, which is the colloquial and grammatically
inaccurate one, is when the term is used as a convenient shorthand way of
telling an employee that he is being given the full period of notice to which he
is entitled by law but is at the same time excused any duty (and refused any
right) that he would otherwise have under his employment contract to attend at
the workplace during the notice period."
Although Waite J did not spell out the result that flowed from each meaning, it is clear
from other decisions that, in the first case, the employee's employment terminates
upon the date of payment of the lump sum. In the second case, the employment
extends until the expiration of the period for which the payment was made.”
[16] The above passage makes it clear that, under the Industrial Relations Act 1988 a
termination of employment, being a termination at the initiative of the employer, occurred at
the time that the employment relationship came to an end and, in the case of an employee who
had been dismissed on notice, the termination of the employment relationship and therefore
the termination at the initiative of the employer occurred when the notice period expired.
[17] Having regard to the obvious provenance in the language used in s.386(1)(a) of the
Act in the termination of employment provisions of the Industrial Relations Act 1988 and
their interpretation in decisions such as Mohazab and Siagian, we consider that the same
approach should be adopted as in those two cases, namely that a person’s “employment with
his or her employer has been terminated on the employer’s initiative” when the person’s
employment relationship with the employer has ended, and that where the employee has been
terminated on notice, the employment relationship ends when the notice period expires.
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Because s.386(1) defines when a person has been dismissed for the purpose of s.394(1), the
same propositions apply to the meaning of the expression “A person who has been dismissed”
in s.394(1). Section 394(1) therefore requires a person’s employment to have terminated in
order for that person to make an application for an unfair dismissal remedy.
Period in which Application is to be made
[18] Section 394(2) is to be interpreted in the context that a person’s employment must
have been terminated in order to make an application for an unfair dismissal remedy.
[19] Section 394(2)(a) should not be read as itself establishing an anterior time limitation
for the filing of an application for an unfair dismissal remedy; rather, it operates on the
premise that s.394(1) requires that a person who may file such an application is a person
whose employment has come to end at the initiative of the employer. On that premise,
s.394(2)(a) requires that the application is to be filed “within” - that is, inside the limit of - 21
days after the “dismissal took effect”. The use of this latter expression in s.394(2)(a) only is
potentially confusing, in that it invites the proposition that the date of a dismissal and the date
it takes effect may be two different things. However, having regard to our earlier analysis
above, we do not consider that the expression refers to anything other than the time at which
the applicant’s employment relationship came to an end.
[20] Section 394(2)(b) confers a power on the Commission to extend the time for the filing
of an application beyond the 21-day time limit prescribed by s.394(2)(a) in accordance with
s.394(3). Section 394(3) requires that such an extension of time may only be allowed if the
Commission is satisfied that there are “exceptional circumstances” taking into account six
specified matters. The specific nature of this power and the highly prescriptive terms upon
which it is conferred strongly indicate that s.394(2)(b) is the only power to extend the time for
the filing of an unfair dismissal application and that it is not open to the Commission to
extend time to lodge an unfair dismissal application by use of any general power it may
otherwise possess under the Act.6 We return to this point later.
[21] The conclusion in the Decision that Mr Mihajlovic’s employment relationship with the
respondent terminated upon the expiry of his notice period on 5 September 2013 means that
his application, filed as it was on 5 August 2013, was not made in accordance with the Act
because the condition for the making of such an application specified in s.394(1) was not at
that time yet satisfied. However, that is not the end of the matter, because it remains necessary
to determine whether, in light of the fact that there is now no doubt that Mr Mihajlovic is a
“person who has been dismissed”, the prematurity in the lodgement of Mr Mihajlovic’s
application has the consequence that it is invalid and a nullity, or merely subject to a defect or
irregularity which is capable of being cured by the use of the Commission’s general powers.
Power to Correct Application not filed in accordance with the Act
[22] The starting point for this consideration is the proposition that not all failures to
comply with a statutory pre-condition result in invalidity. In the NSW Court of Appeal
decision in Woods v Bate7 McHugh JA (as his Honour then was, and with whom Hope JA
agreed) said, in the context of consideration of the consequence of a failure to comply with a
statutory requirement as to time8:
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“In recent times the courts have shown great reluctance to invalidate an act done
pursuant to a statutory provision because of the failure to comply with an antecedent
condition: see Simpson v Attorney-General; Clayton v Heffron; Samuel Montagu & Co
Ltd v Swiss Air Transport Co Ltd; Ex parte Tasker; Re Hannan; Attorney-General
(NSW): Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd reversed on another ground
sub nom Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex rel
Franklins Stores Pty Ltd); Tasker v Fullwood; Hatton v Beaumont. Speaking
generally, I think that, at the present time, the proper approach is to regard a statutory
requirement, expressed in positive language, as directory unless the purpose of the
provision can only be achieved by invalidating the result of any departure from it,
irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont.”
[23] The categorisation of statutory requirements as being either mandatory or directory
was rejected by the High Court in Project Blue Sky v Australian Broadcasting Authority9 in
favour of an approach whereby the validity of any act done in breach of a statutory condition
“depends upon whether there can be discerned a legislative purpose to invalidate any act that
fails to comply with the condition”.10 With that qualification, the approach taken by McHugh
JA in Woods v Bate may be accepted as correct and applicable. For example, it was cited with
approval by Kirby J in Emanuele v Australian Securities Commission11. In that case, the
respondent had made an application to the Federal Court seeking to wind up an insolvent
company. Under s.459P(2) of the then Corporations Law, leave of the court was required
before such an application could be made. The respondent made its application without ever
having sought or obtained such leave, and was successful in obtaining the winding up order
that it sought. When this order was appealed to the Full Court of the Federal Court, the Court
noted the failure to comply with s.459P(2), and made an order granting such leave nunc pro
tunc (meaning ‘now for then’). The appeal to the High Court concerned the validity of this
order. The majority (Dawson, Toohey and Kirby JJ) concluded that the order was properly
made. The following passage from the judgment of Dawson J is instructive:
“Section 459P does not confer jurisdiction on the Federal Court to make a winding up
order; it does no more than identify the parties who may make an application, requiring
leave to be obtained in the case of some of them including the Commission.
Jurisdiction is conferred on the Federal Court by s 459A of the Corporations Law in
conjunction with s 42(3) of the Corporations (South Australia) Act 1990 (SA). The
failure to obtain leave was a mere defect or irregularity in the exercise of that
jurisdiction. It did not affect the validity of the order made, although it may have
provided a ground for staying it or setting it aside.
Since the failure to obtain leave was procedural and did not go to jurisdiction, there
was no reason why the Full Court of the Federal Court should not have cured the
defect or irregularity by granting leave nunc pro tunc.”
[24] Having regard to the above principles, we will consider whether the relevant
provisions disclose a statutory intention to invalidate any application such as Mr Mihajlovic’s
which at the time of filing did not comply with the condition for the making of an application
in s.394(1).
[25] The objects of an Act and the legislative context are relevant to any consideration of
the proper interpretation of a particular provision in an Act.12 A section must be read in
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context by reference to the language of the Act as a whole.13 As Dixon CJ said in
Commissioner for Railways (NSW) v Agalianos14:
“... the context, the general purpose and policy of a provision and its consistency and
fairness are surer guides to its meaning than the logic with which it is constructed.”
[26] His Honour’s observation was cited with approval in Project Blue Sky Inc v Australian
Broadcasting Authority.15
[27] Firstly, the object of Part 3-2 of the Act is set out in s.381(1) as follows:
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
[28] The reference in the object to unfair dismissal procedures being “quick”, and the
emphasis on reinstatement as the primary remedy16, tend to explain the 21-day time limit in
s.394(2)(a) and the restricted circumstances in which any extension of time may be granted
under s.394(3), but they do not suggest any legislative purpose to invalidate an application
lodged prematurely in respect of a dismissal on notice.
[29] Section 390(1) identifies the circumstances in which the Commission is empowered to
make a reinstatement or compensation order. It provides:
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
[30] The expression “unfairly dismissed” in s.390(1)(b) is defined in s.385 as follows:
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
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(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.
[31] The requirement in paragraph (a) that “the person has been dismissed” imports the
definition of that expression in s.386(1) to which we have earlier referred. By this means, the
exercise of the Commission’s jurisdiction to grant an unfair dismissal remedy is conditioned
by the requirement that the person’s employment relationship with the employer has to have
terminated either at the employer’s initiative or as a result of a forced resignation. That is of
course a condition which must be satisfied at the time the Commission makes its decision.
[32] Section 390(2) then provides:
(2) The FWC may make the order only if the person has made an application under
section 394.
[33] On one view, s.390(2) may be said to erect as a jurisdictional requirement for the
granting of an unfair dismissal remedy that an application has been made in accordance with
s.394(1). However, we do not consider that that is the correct view. Section 390(2) does not
say that the application needs to have been made in accordance with s.394, but only under
s.394 (and is to be contrasted in that respect to s.587(1)(a), to which we will shortly turn,
which refers to applications not made in accordance with the Act). In that connection, the
purpose of the provision is, we think, to make it clear that the Commission cannot grant an
unfair dismissal remedy on its own initiative but may only do so upon application; in this
respect, the provision is to be contrasted with a range of provisions under the Act in which the
Commission is conferred with power to act on its own initiative as well as upon application;
see, for example, ss.157, 159, 160, 418, 419, 423, 424, 505, 508. It would be superfluous for
the provision to be read as having the purpose of establishing a jurisdictional requirement that
the person must have been dismissed in accordance with the definition in s.386, because as
already explained that jurisdictional prerequisite is already established by s.390(1)(b) read
with s.385(a) and s.386.
[34] There are a number of provisions concerning the general procedural powers of the
Commission which are relevant and contained in Subdivision A, titled “Applications to the
FWC”, of Division 3 of Part 5-1 of the Act. Section 586 and 587 provide:
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document
relating to a matter before the FWC, on any terms that it considers
appropriate; or
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(b) waive an irregularity in the form or manner in which an application is
made to the FWC.
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss
an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under
section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
[35] There is a long history in predecessor statutes to the Act of provisions which are
equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and
Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to
“allow the amendment, on such terms as it thinks fit, of any proceedings” and to “correct,
amend or waive any error, defect or irregularity, whether in substance or in form”. In Re
Coldham; Ex parte BLF17 the High Court gave these provisions, together with the power to
“extend any prescribed time” in s.41(1)(m), a wide field of operation so as to give effect to the
statutory intention that proceedings before the Commission be directed to the merits and that
technicalities and legal forms should not be regarded. These provisions were reproduced in
s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in
that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work
Choices manifestation of the Workplace Relations Act removed the general power to extend
time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects
or irregularities was used in a wide variety of circumstances as to both procedural and
substantive matters: see, for example, Re Union of Christmas Island Workers18; Re The
Association of Professional Engineers, Scientists and Managers, Australia19; Re Perth Bus
Certified Agreement20; Caruana v STA Pty Ltd21; Boom Logistics/Employee Naval Base
Industrial Agreement 2004/200522 and CPSU v Port Adelaide Training and Development
Centre Incorporated t/as PATDC Employment and Training23.
[2014] FWCFB 1070
13
[36] Section 586(b) may be narrower than the previous provisions referred to, in that the
waiver power is confined to matters of “form or manner” rather than “substance or ... form”.
There is surprisingly little authority, outside the State constitutional context, as to what types
of matters are encompassed by “form or manner” or like expressions such as “manner and
form”. However, in O’Connor v Kinniburgh24 the New Zealand Supreme Court held that a
statutory power to make regulations concerning the “form and manner” in which a thing is to
be done may include requirements as to when the thing may be done.
[37] In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations
Commission of South Australia observed that provisions of the same type as s.586(b) are
“directed towards ameliorating the effect of a variance or failure to comply with a procedure
specifically stated in the Act or Rules so that the Commission can proceed to deal with the
real dispute between the parties without the limitations of procedural defects”.25
[38] Under s.587(1)(a), the Commission “may” dismiss an application that “is not made in
accordance with this Act”. Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:
(2A) Where an Act assented to after the commencement of this subsection provides
that a person, court or body may do a particular act or thing, and the word may is
used, the act or thing may be done at the discretion of the person, court or body.
[39] Section 40A of the Act provides that the Acts Interpretation Act as in force on 25 June
2009 applies to the Act, but that amendments after that date do not. Section 33(2A) came into
effect on 18 December 198726, and therefore applies to the Act. Under s.2 of the Acts
Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is
subject to a contrary intention. We do not consider, taking into account that the Explanatory
Memorandum refers to cl.587 “allowing” the dismissal of applications, that s.587(1) falls into
that unusual category of statutory provisions where “may” is to be read as “must”. The
provision was characterised as discretionary in nature by the Full Bench in Viavattene v
Health Care Australia27. If, as we conclude that it does, s.587(1) confers a discretionary
power, then under paragraph (a) it is open for the Commission not to dismiss an application
not made in accordance with the Act. That discretion must of course be exercised bona fide
having regard to the policy and purpose of the Act.28
[40] Finally, we refer to s.577(b) of the Act, which requires the Commission to perform its
functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary
technicalities”, and s.578(b), which requires the Commission in performing functions or
exercising powers to take into account “equity, good conscience and the merits of the matter”.
[41] The objects of Part 3-2 of the Act are also relevant, particularly the establishment of
procedures for dealing with unfair dismissal that are “flexible and informal” (s.381(1)(b)(i)).
These provisions are not in themselves a source of power29, but they guide the Commission in
the exercise of its powers.
[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
[2014] FWCFB 1070
14
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).
[43] We emphasise that the conclusions we have stated do not operate in relation to an
application sought to be filed after the time limit prescribed in s.394(2)(a). As earlier stated,
the highly specific and prescriptive nature of the requirements in s.394(3) applicable to the
grant of an extension of time beyond the 21-day limit means that the operation of any general
procedural power in that area is excluded. That this is the case is demonstrated by the Full
Bench decision in ABC Transport Pty Ltd, in which it was held that an application lodged
after the 21-day limit in respect of which no extension of time has been allowed under
s.394(3) has not been “made” at all.30 It follows that s.587(1)(a) could not have any
application in that circumstance. The lack of any provision of the nature of s.394(3)
applicable to an application filed prematurely demonstrates that in that circumstance the
Commission’s general procedural powers are available. We note however that whether such
powers are exercised in a particular case will depend on a consideration of all the
circumstances and it should not be assumed that the waiver of an irregularity will be
automatic. The general self evident proposition is that unfair dismissal applications are to be
made within the prescribed 21-day period after a dismissal takes effect.
[44] This matter will be remitted to Vice President Hatcher to determine whether the
discretion in s.586(b) should be exercised in the particular circumstances of this case and if
necessary to waive the irregularity in the manner in which the application was made.
PRESIDENT
Hearing details:
Heard via written submissions
Final written submissions:
January 31, 2014
Printed by authority of the Commonwealth Government Printer
Price code C, PR547716
[2014] FWCFB 1070
15
1 [2013] FWC 9804
2 (1995) 62 IR 200
3 Ibid at 205-6
4 (1994) 122 ALR 333
5 Ibid at 352
6 Applying the principle of statutory interpretation stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied
Trades Union of Australia (1932) 47 CLR 1
7 (1986) 7 NSWLR 560
8 Ibid at 567, footnotes omitted.
9 (1998) 194 CLR 355
10 Ibid at 388-389 [91]-[93] per McHugh, Gummow, Kirby and Hayne JJ
11 (1997) 188 CLR 114
12 For example see Russo v Aiello (2003) 215 CLR 643 at 645 per Gleeson CJ. Also see s.15AA of the Acts Interpretation
Act 1901 (Cth) and s.40A of the Fair Work Act 2009 (Cth).
13 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69].
14 (1955) 92 CLR 390 at p397.
15 (1998) 194 CLR 355 at p381.
16 See DP World Sydney Limited v Mr Stephen Lambley [2013] FWCFB 9230 per Lawler VP at [136]-[138].
17 (1985) 64 ALR 215
18 Print M6777 [1995] AIRC 2622
19 Print P1442 [1997] AIRC 485
20 Print T2638 [2000] AIRC 488
21 PR903156 [2001] AIRC 320
22 PR951366 [2004] AIRC 838
23 PR964828 [2005] AIRC 968
24 [1940] NZLR 296
25 (1996) 65 IR 178 at 181, quoted with approval by a Full Bench of this Commission in Narayan v MW Engineers Pty Ltd
[2013] FWCFB 2530 at [11]-[12].
26 By virtue of the Statute Law (Miscellaneous Provisions) Act 1987
27 [2013] FWCFB 2532 at [40]
28 Bowling v General Motors - Holden’s Pty Ltd (1980) 50 FLR 79 at 91
29 Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [13]
30 [2012] FWAFB 3212 at [11]
