Jurisdictional objections not to be dismissed when dealing with general protections applications

In the recent decision, Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, the Full Federal Court found that the Full Bench of Fair Work Commission misconstrued jurisdiction when finding that the Commission was not authorised to make a finding as to whether or not an applicant had been dismissed from his or her employment.  Up until this decision, it had been held in various Commission decisions that such a jurisdictional issue couldn't be considered until it reached the next stage in the Federal Circuit Court/Federal Court.

General protections applications involving dismissal

When making general protections applications involving dismissal, employees must first make an application to the Fair Work Commission to deal with the dispute pursuant to section 365 of the Fair Work Act 2009 (Cth) (FW Act). The application must be made within 21 days from the day the dismissal takes effect, or within a further time allowed by the Fair Work Commission if it considers there are exceptional circumstances to grant an extension.  

The Fair Work Commission must deal with the dispute under section 368 of the FW Act, usually by conducting conciliation between the parties.  If the dispute cannot be resolved by conciliation, the Commission must issue a certificate to that effect. This is an essential pre-condition for the employee to commence a general protections court application.

Out of time application

In Coles v Milford, Mr Milford was a casual store worker employed by Coles Supply Chain Pty Ltd. On 5 August 2018, Mr Milford filed a general protections application involving dismissal with the Commission, alleging that he was dismissed by Coles in breach of the general protections provisions, the dismissal taking effect on 20 July 2018 (within 21 days of his application).

Coles claimed that the Fair Work Commission did not have jurisdiction to deal with the dispute. Coles raised two jurisdictional objections to the application, initially submitting that the dismissal took effect on 1 October 2014 (and the application was therefore substantially out of time) and then later submitting that the employee had not been dismissed at all because his employment had in fact come to an end by operation of an enterprise agreement.

At first instance, Deputy President Booth found that the employee's employment came to an end on 1 October 2014 and his application was therefore out of time. Mr Milford appealed this decision, which was dismissed on the basis that he could still make an application for the Commission to grant him an extension of time. Mr Milford made an extension of time application, which Deputy President Booth dismissed and Mr Milford sought to appeal the Deputy President's decision to the Full Bench of the Fair Work Commission.

On appeal, the Full Bench found that the date of the Mr Milford's dismissal was to be ascertained by reference to the date alleged on the employee's application and that by determining otherwise, the Commission had effectively determined the dispute between the parties on the merits i.e. whether he had been dismissed or not, which it was not empowered to do. The Full Bench therefore considered the application was filed within the required 21 day time period and it therefore was able to deal with the dispute.

Commission misconstrued its jurisdiction

Coles subsequently made an application for judicial review of the Full Bench's decision, which was heard by the Full Court of the Federal Court.

The Full Court found that the Full Bench of the Fair Work Commission had erred by misconstruing the provisions of the FW Act defining the boundaries of the Commission's authority to deal with the dispute.

The Full Court found that, where an application is lodged under section 365, it is open for the respondent to assert that there has in fact been no dismissal or that the date of dismissal alleged by the employee is incorrect and that the dismissal is in fact is out of time. The Full Court found that these are both questions that the Commission must resolve before its powers under section 368 to deal with a dispute (including conducting a conciliation) can be exercised at all.  

Takeaway for employers

In light of the Full Court's decision, employers should consider at an early stage whether it wishes to challenge:

• the alleged date of the employee's dismissal – specifically, where the employer contends that the employee was dismissed at an earlier time which would result in the application being made outside the required 21 day time period; and/or
• whether the employee was dismissed – this will most often arise in circumstances where the employee alleges (and the employer contests) that her or she has been constructively dismissed.

By raising these jurisdictional issues at an early state, the Commission may find that it has no power to hear the dispute and cannot issue the certificate. The matter will then not be able to be pursued further and represents a swift way to deal with the application and potentially avoiding the cost and inconvenience of participating in the Commission's conciliation process and defending any subsequent court application.