In the recent decision of Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, the Full Court of the Federal Court of Australia (the “FCAFC”) has provided clarity on the construction of the Fair Work Act 2009 (Cth) (the “FW Act”) and the jurisdictional boundaries of the FWC in general protection applications involving dismissals. Ultimately, the FCAFC found that the FWC misconstrued jurisdiction.

Background

The applicant, Mr Milford was employed by Coles Supply Chain Pty Ltd (“Coles”) as a casual employee. Although he had worked regular shifts since 2010, following an injury at work, he was unable to work a full shift after 1 October 2014. On 13 June 2016, Mr Milford was sent a letter from a representative of Coles informing him that his employment had been terminated.

In or around June 2018, Mr Milford wrote to Coles on multiple occasions seeking a return to work for rehabilitation. Coles subsequently sent Mr Milford a letter dated 20 July 2018 stating that they could not accept his request as he was no longer an employee of Coles and had not been since 2014.

Mr Milford filed a general protections claim on the basis that he was dismissed in July 2018 and that his requests to return to work constituted the exercise of a workplace right.

Findings of the FWC and FWCFB

Coles raised a jurisdictional objection to Mr Milford’s general protections application on the basis that his dismissal took effect on his last casual shift on 1 October 2014 and that his application had hence not been filed within the 21-day time limit. In the alternative, Coles argued that Mr Milford had not been dismissed by reason of his status as a casual employee and the operation of the applicable enterprise agreement.

In the first instance, the Fair Work Commission (the “FWC”) determined that Mr Milford’s employment had come to an end on 1 October 2014 and that Coles had made him aware of that dismissal in June or July 2016. As a consequence, the FWC found that the Application was out-of-time. Following an unsuccessful application to extend time, the Applicant appealed the decisions to the Full Bench of the Fair Work Commission (the “FWCFB”).

The FWCFB set aside the decision of the FWC and referred the matter to another Commissioner to deal with the dispute pursuant to s 368 of the FW Act. The FWCFB determined that the date of dismissal was to be ascertained by reference to the date of dismissal that had been alleged by Mr Milford on his application, namely 20 July 2018 irrespective of whether the allegation was in fact correct. The FWCFB concluded that the FWC had acted outside of its powers and had erred by effectively determining the substantive dispute between the parties on the merits.

Coles appealed the decision of the FWCFB to the Federal Court of Australia. Coles submitted that the FWC had misconstrued jurisdiction and sought orders in the nature of constitutional writs and declarations as to the proper construction of the FW Act.

The Hewitt Decision

The decision of Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321 (the “Hewitt Decision”) was applied in the reasoning of both the FWC and FWCFB decisions. The FCAFC summarised that the effect of the Hewitt Decision was that the FWC was not authorised to make any finding as to whether or not an applicant had been dismissed from his or her employment as to do so would determine the substantive dispute on its merits, which the FWC had no authority to do. In the Hewitt Decision, the FWCFB found that the authority of the FWC to deal with a dispute did not depend upon there having been a dismissal in fact, rather it depended on the applicant having alleged that he or she has been dismissed form his or her employment.

Findings of the FCAFC

The FCAFC found that when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply.

The FCAFC further found that it is was also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.

The FCAFC confirmed that the FWC misconstrued jurisdiction, quashed the decision of the FWCFB and ordered the FWCFB to hear and determine Mr Milford’s application according to law. The FCAFC confirmed that the reasoning in the Hewitt Decision was disapproved to the extent that it is inconsistent with the conclusions in this decision.