In a novel decision, the Fair Work Commission (the FWC) has held that it has jurisdiction to hear an unfair dismissal application under the Fair Work Act 2009 (FW Act) that was made after the employer has given notice of termination, but before the employment relationship ended.

In Mr Michael Kovac v Aboriginal Legal Service (NSW/ACT) Limited [2013] FWC 6832, Senior Deputy President Drake heard an objection by the Aboriginal Legal Service (the ALS) to the Applicant’s claim. ALS submitted that the FWC did not have jurisdiction to hear the application as it was filed on 6 February 2013, but that the Applicant’s employment did not end (and hence the Applicant was not ‘dismissed’) until 19 April 2013.

The facts in the case were made somewhat more complex as the Applicant had been employed on a series of ‘fixed term contracts’, for the following periods:

  1. 15 November 2010 to 8 June 2012 (the first contract);
  2. 23 July 2012 to 18 January 2013 (the second contract); and
  3. 18 January 2013 to 19 April 2013 (the third contract).

According to the facts, it was the ALS’s actions on 15 January 2013 in bringing to an end the second contract on performance grounds (effective 18 January 2013) that triggered the Applicant to file his unfair dismissal application on 6 February 2013. However, and despite the performance issues raised, the ALS then offered the Applicant (and the Applicant accepted) the third contract, which continued past the date on which the unfair dismissal claim had been made.

At the jurisdictional hearing on 1 May 2013 (after the employment had ended), the ALS submitted that:

  1. the Applicant had not been dismissed on the day he filed his application, being 6 February 2013, as the employment relationship continued despite the series of contracts; or
  2. alternatively, if the Applicant had been dismissed at 6 February 2013 (and the employment relationship had not continued from contract to contract), the Applicant’s service in the second contract was less than the statutory 6 month minimum period under section 383 of the FW Act.

SDP Drake accepted the long-standing principle that there was a ‘conceptual difference’ between the termination of a contract of employment, and the employment relationship itself, and on this basis, accepted the ALS’s primary submission that the cessation of the second contract did not end the employment relationship, and, as such, the Applicant had not been dismissed as at 6 February 2013.

Notwithstanding this finding, SDP Drake indicated that the cessation of the second contract operated as ‘notice of termination of the employment relationship’, which occurred on 19 April 2013, and that she was ‘not persuaded that the Commission cannot hear an application lodged after notice of termination of employment is given but before the employment relationship is at an end’. The effect of this finding appears to be that the application will continue, based on the eventual dismissal on 19 April 2013.

This decision appears to infer a very broad meaning to the wording of section 394(2)(a) of the FW Act, which states that an application for dismissal ‘must be made … within 14 days after the dismissal took effect’ (or within such further period as the Tribunal allows), and appears to conflate the concept of a ‘dismissal’ with the concept of ‘notice of dismissal’. Further, the decision does not appear to recognise that the cessation of the third contract (and hence the employment relationship) occurred through the ‘effluxion of time’, rather than as a result of a termination at the employer’s initiative.  Practically, however, it is not difficult to foresee the FWC allowing ‘early’ applications, if it means that no real prejudice arises for the employer.

The decision is an interlocutory decision, and SDP Drake has invited the ALS make further submissions on the findings if it wishes to do so.


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