Can an employee really be "unfairly dismissed" before actually being dismissed? That is a question the Full Bench of the Fair Work Commission (FWC) looked at in Peter Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070, handed down on March 5, 2014.

In a nutshell…

  • On August 5, 2013, an employee filed an unfair dismissal application. The employer objected, arguing that the employee's dismissal took effect on June 7, 2013, making his application outside the prescribed 21-day time limit.
  • However, in a curious twist, VP Hatcher found that the employee had only been given notice of termination on June 7, 2013. In fact, his employment did not cease until the expiry of three months' notice on September 5, 2013.

These circumstances lead to some curious questions, given that the unfair dismissal application had been lodged prior to the dismissal taking effect - namely: 

Is an application lodged prematurely automatically invalid, or can it be "saved" by the FWC's powers under the Fair Work Act 2009 (Cth)?

NB, the FWC has authority to allow an amendment of an application on terms it considers appropriate, or to waive an irregularity in the form/manner in which the application is made (see s. 586 of the Act).

The FWC held that the Act does not operate to automatically invalidate a premature unfair dismissal application. Further, the FWC can exercise discretion to accept unfair dismissal applications despite an employee not having been dismissed at the time of filing. The FWC did however take the opportunity to reiterate that late applications (after the 21 day limit) would still require demonstration of "exceptional circumstances" before extra time may be allowed to make an unfair dismissal application.