Ajay Konakalla v Bendigo and Adelaide Bank Ltd [2017] FWC 829

1 Fair Work Act 2009 s.394—Unfair dismissal Ajay Konakalla v Bendigo and Adelaide Bank Ltd (U2016/13806) MELBOURNE, 8 FEBRUARY 2017 Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - irregularity in the application waived. [1] Mr Ajay Konakalla made an application for unfair dismissal remedy on 17 November 2016 under s.394 of the Fair Work Act 2009 (the Act). Bendigo and Adelaide Bank Ltd (BAB) has objected to the application on a number of jurisdictional grounds. In particular, it objected to the application because it was made during Mr Konakalla’s notice period and prior to the effective date of his dismissal. [2] By letter dated 3 November 2016, Mr Konakalla was notified that his employment was being terminated due to redundancy and the final date of his employment would be 1 December 2016. In his F2 Application lodged on 17 November 2016, Mr Konakalla had stated that he was notified by BAB of his dismissal on 3 November 2016 and that it took effect on 3 November 2016 while BAB maintained, as outlined in its F3 Employer’s Response filed on 24 November 2016, that it notified Mr Konakalla of his dismissal on 3 November 2016 and that it was to take effect on 1 December 2016. [3] The matter was listed for a Jurisdiction Conference/Hearing to be held on 17 February 2017 to determine the effective date of dismissal objection and parties were directed to file submissions regarding this by no later than 4.00pm on 8 February 2017. [4] On 1 February 2017, Mr Konakalla filed material with the Commission in support of his application for amendment, submitting the date that his dismissal took effect should be changed from 3 November 2016 to 1 December 2016. In his submissions, Mr Konakalla stated that having been initially advised that he had the option of taking a lump sum payment in lieu of notice, he was not ultimately provided with this option and yet, during his notice period of four weeks, he did not have his usual employee access or privileges. Mr Konakalla further submitted that due to handing over his building access on 3 November 2016 and being told he would not be required to come back to work, he believed his last day of employment with BAB was 3 November 2016. [5] On 3 February 2017, the representative for BAB sent correspondence to the Commission confirming that BAB no longer wished to pursue the objection related to the [2017] FWC 829 DECISION -- 1 of 3 -- [2017] FWC 829 2 effective date of dismissal and would not be providing submissions in this regard. This correspondence also foreshadowed that should the matter proceed on the basis of the application being amended pursuant to s.586(b) of the Act, BAB still intended to pursue its jurisdictional objection that the dismissal was a case of genuine redundancy. [6] The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by a Full Bench of the Commission in Mihajlovic v Lifeline Macarthur1 (Mihajlovic). The Full Bench in Mihajlovic 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).”2 [7] 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.3 In subsequently exercising his discretion to waive the irregularity, Vice President Hatcher stated: “[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.”4 [8] I intend to have regard to similar considerations in considering whether to exercise my discretion to waive the irregularity in the manner in which Mr Konakalla’s application was made. [9] In the circumstances of this case, there is no dispute between the parties that Mr Konakalla was notified on 3 November 2016 of his dismissal, which subsequently took effect following 1 December 2016. It would seem that while the letter from BAB stipulated that the last day of Mr Konakalla’s employment was to be 1 December 2016, the arrangements put in place after the termination was notified led to Mr Konakalla’s confusion and his belief that his termination had been with immediate effect. -- 2 of 3 -- [2017] FWC 829 3 [10] There is no suggestion that the fact that Mr Konakalla’s application was filed two weeks prematurely has caused any prejudice to BAB and in its correspondence dated 3 February 2017, BAB confirmed it no longer pursues its objection relating to the effective date of dismissal. As such, and in all of the circumstances of this application, I consider that the discretion in s.586(b) of the Act should be exercised in Mr Konakalla’s favour. [11] Therefore, pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Konakalla made his application for an unfair dismissal remedy. The matter will now be referred for further programming for its further disposition. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR590116> 1 [2014] FWCFB 1070. 2 Ibid at [42]. 3 Ibid at [44]. 4 [2014] FWC 1871 at [6]. -- 3 of 3 --