s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application made out of time - application filed prematurely - irregularity waived under s.586(b) of the Fair Work Act - jurisdictional objection dismissed - application to proceed

• [1] Ms Heidi Pooler (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 13 December 2024. The Applicant claimed that adverse action was taken against her by Hodgson Lawyers Pty Ltd (the Respondent) under s. 351 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent objects to the application on the basis that it was made outside the statutory 21-day timeframe because, they say, it was filed before the Applicant's dismissal took effect.

• [3] Submissions were sought from both parties to address the jurisdictional objection. The Applicant filed her submissions on time but subsequently did not attend the hearing on 24 March 2025. The hearing was adjourned and postponed. Explanation was sought from the Applicant and my Chambers sought to reschedule the matter. The Applicant has not communicated with the Commission since 11 March 2025. The matter was re-listed for hearing on 17 April 2025 and was determined in the Applicant's absence under s.600 of the Act.

• [4] The facts are straightforward and uncontentious. There is no factual dispute about when the events took place, only a legal dispute about the effective date of dismissal.

• [5] The Applicant commenced employment with the Respondent on 26 February 2024.

• [6] On 3 December 2024, the Respondent sent the Applicant a termination letter. The letter alleges that the Applicant is being terminated for performance reasons. The Applicant argues that the performance issues are being used as a pretext for termination and the real reason is that the Applicant had recently revealed that she pregnant and had discussed maternity leave.

• [7] For present purposes, the important parts of the dismissal letter are as follows:

We are writing to formally notify you of the termination of your employment with Hodgson Lawyers Pty Ltd ("Hodgson Lawyers"), effective close of business on 20 December 2024. This decision has been made following a thorough review of your performance and conduct, which has revealed consistent and significant deficiencies, and such have not been reconciled with the standards required by the firm.

In accordance with your employment contract and statutory requirements, you are now provided with four weeks' notice of your termination. During this notice period, you will remain employed with the firm until 31 December 2024, your last day of work is on 20 December 2024 taking into account our office Christmas closure, effectively 20 December. At that time, we will provide you with a final reconciliation of your entitlements, including any accrued but unused annual leave.

• [8] Following the termination letter, the Applicant emailed the Respondent on 3 December 2024 the following:

After consideration, I have decided to complete the remainder of notice with my annual leave as of today.

• [9] On 13 December 2024, the Applicant filed her general protections application while on leave. The Respondent objects on the basis that the Applicant's dismissal had not taken effect by that point in time.

• [10] In Ayub v NSW Trains [2016] FWCFB 5500, the Full Bench stated that:

[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.

• [11] The Applicant argues in her written submissions that the dismissal is effective from 3 December 2024, as this is the date the termination letter was sent. This submission must be rejected, as it contradicted by the plain wording of the termination letter. The termination is not stated to be effective immediately, and the Applicant was not paid notice in lieu.

• [12] The termination letter can be read as either meaning that the Applicant's dismissal is effective from 20 December 2024 or 31 December 2024. The difference is academic as both of those dates are after 13 December 2024, when the application was filed. I find that the dismissal was effective from 31 December 2024, as the Respondent has stated that they are giving 4 weeks' notice of termination.

• [13] Therefore, the termination took effect from 31 December 2024, and the application was filed prior to that date, on 13 December 2024. The Respondent is technically correct that the application was not made within the "21 days after the dismissal took effect" (s.366(1)(a)).

Should the irregularity be waived or should the application be dismissed?

• [14] In the Directions, I drew the parties' attention to the Full Bench decision of Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070. In that decision, the Full Bench found that the premature filing of an application involving dismissal (in that case, an unfair dismissal application) is an irregularity which can be waived under s.586(b). The Full Bench made the following comments:

[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).

• [15] Given the similarity in the wording of the legislative provisions, the comments of the Full Bench are equally applicable to s.366(1)(a) as they are to s.394(2).

• [16] Vice President Hatcher (as he then was) considered the following factors in deciding whether to waive the irregularity in Mihajlovic v Lifeline Macarthur [2014] FWC 1871: whether the substantive application had merit;[1] whether there would be any prejudice to the Respondent as a result of the waiver;[2] whether the Applicant could discontinue and file a new application within time;[3] and, whether, if a new application was filed, there would have to be another hearing on whether to grant an extension of time, causing additional cost and inconvenience for the parties.[4]

• [17] During the hearing, I asked the Respondent if they would suffer any prejudice if the irregularity were waived. They admitted that they would not. However, they do say that their time has been wasted in having to attend twice when the Applicant has not turned up for the hearings. I acknowledge that it is disappointing that the Applicant has inexplicably stopped communicating with the Commission. However, I would not be prepared to find that there is prejudice to the Respondent on that basis. Neither would it be appropriate to dismiss the application for want of prosecution because Applicant did file her submissions correctly in accordance with the Directions.

• [18] Conversely, if the application were dismissed, the Applicant would suffer prejudice. If the Applicant made a new application, it would now be out of time, and she would have to seek an extension of time under s.366(1)(b). This would mean additional time and cost for both parties.

• [19] The Applicant has identified a protected attribute and has argued that the timing of the dismissal proves that the Applicant was terminated because of her pregnancy. I make no findings as to the correctness that assertion. However, I would not conclude that the substantive application is without merit.

In the circumstances, it is appropriate that I exercise my discretion and waive the irregularity under s.586(b). The jurisdictional objection is therefore dismissed, and the matter will be programmed for conference in accordance with s.368 of the Act. If the Applicant does not attend the conference, I may issue a certificate under s.368(3)(a).

[1] Mihajlovic v Lifeline Macarthur [2014] FWC 1871, [5]

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