In a landmark decision, the Full Court of the Federal Court has ruled that the Fair Work Commission (FWC) has power to determine when, and whether, a dismissal from employment has occurred when dealing with a general protections application.
A casual employee filed a general protections application under s365 of the Fair Work Act 2009 (Cth) (FW Act), claiming that he had been dismissed because of a workplace right. Such a dismissal would amount to unlawful adverse action contrary to the general protections provisions in Part 3-1 of the FW Act.
Where an application under s365 is lodged, the FWC must deal with the dispute by way of private conference, and if the dispute cannot be resolved, the FWC must issue a certificate to that effect under s368 of the FW Act. The aggrieved employee can then pursue the claim in the Federal Court or Federal Circuit Court or, if the parties agree, the FWC may conduct an arbitration.
The employer notified the FWC of two jurisdictional objections. First, that the claim was made well outside the 21 day time limit set by s366 of the FW Act because the employment ceased with effect from the employee’s last casual shift, rather than the later date relied on by the employee. Second, the employee had not been dismissed. The employment ended with the last casual shift and thereafter the employee had not been allocated more shifts.
The FWC dealt with the jurisdictional issues and upheld the first objection. As a result the application could not proceed, with the result that no certificate would be issued and so the employee was precluded from advancing the adverse action claim before the Federal Court or Federal Circuit Court.
The employee appealed to a Full Bench of the FWC, which found that the original decision was affected by error because the FWC does not have jurisdiction to make a factual determination when dealing with a dispute under s365 of the FW Act – particularly where this would have the result of effectively determining the application. A factual determination regarding the dismissal was a matter for an eligible court, or the FWC only if the parties had consented to arbitration.
The employer applied to the Full Federal Court for judicial review of the decision.
Decision of the Full Court
The Full Court quashed the decision of the Full Bench and ruled that under s365 of the FW Act the FWC has jurisdiction to:
- determine whether a person has an entitlement to make the application; and
- determine when and whether a dismissal occurred.
The decision makes it clear that respondent parties to an adverse action claim under s365 of the FW Act can ask the FWC to decide issues affecting the eligibility of the employee to bring the application, and that the FWC has power to decide those issues even if it results in denial of the claim. In the future, respondent parties will be encouraged to fully ventilate such issues at an early stage before the FWC, rather than waiting to do so once the matter has progressed to a claim in the Federal Court or Federal Circuit Court.
 See Coles Supply Chain Pty Ltd v Milford  FCAFC 152.