Procedural irregularities in the Fair Work Commission

The Fair Work Commission has considerable powers to cure procedural deficiencies in applications made to it and here is an example of just that occurring.


The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by the Full Bench in Mihajlovic, where it said:

“[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 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).” 1

In Mihajlovic, the Full Bench remitted the matter back to Vice President Hatcher to determine whether the discretion in s.586(b) of the Act should be exercised. 2 In subsequently exercising his discretion to waive the irregularity, Vice President Hatcher stated:

“[5] The respondent submitted that because Mr Mihajlovic knew at the time that he lodged his application that his dismissal had not yet taken effect, the discretion to waive the irregularity under s.586(b) should not be exercised in his favour. It further submitted that his application concerned his dissatisfaction as to whether he had been paid his statutory entitlements, which was an issue not capable of resolution by the Commission. Although not expressly stated, I took this as a submission that waiver should not be granted because the application lacked substantive merit and was doomed to fail.

[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

[8] I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.” 3

I have had regard to similar considerations in determining whether to exercise my discretion to waive the irregularity in the manner in which Mr Tresize’s application was made.

In the circumstances of this case, there is no dispute between the parties that Mr Tresize’s application was made prior to the dismissal nor is there any dispute that Mr Tresize has subsequently been dismissed from his employment with the Respondent. Further, the Respondent concedes that the premature nature of the application has not caused it any prejudice and it does not object to the Commission’s waving of the irregularity.

Therefore, in all of the circumstances of this application, I consider the discretion in section 586(b) of the Act should be exercised in Mr Tresize’s favour.

Pursuant to section 586(b) of the Act, I waive the irregularity in the manner in which Mr Tresize made his application for an unfair dismissal remedy. The matter will proceed to Jurisdiction and Arbitration Hearing on 29 September 2020 as listed.”

Tresize v Ridley AgriProducts Pty Ltd (2020) FWC 4320 delivered 17 August 2020 per Cirkovic C