Confirmation of Fair Work Commission’s jurisdiction in general protections applications

A recent refusal by the High Court of Australia to grant special leave to appeal the Full Court of the Federal Court’s judgement in Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 (Milford) has confirmed that the Fair Work Commission (FWC) has the jurisdiction to deal with certain objections that may be made by employers to general protections applications involving a dismissal.

The FWC had previously held that it did not have the jurisdiction to deal with employers’ objections to general protections applications involving a dismissal, leaving no option but to pursue the objection if the application proceeded to the Federal Court or Federal Circuit Court.

A successful objection by an employer to a general protections application involving a dismissal will prevent the applicant from continuing with their application to the Court, as the FWC will not be able to issue a certificate. Without a certificate from the FWC, an applicant cannot make a Court application. 

The benefit for employers and their insurers is that, for applications where there are real disputes about these objections, they can now be dealt with a lot earlier than before. This represents a saving in time and legal fees and may potentially bring the claim to an end much sooner.

What can be challenged?

While it is largely accepted that the FWC, as a result of Milford, can deal with the jurisdictional question of when or if the employee was dismissed within the meaning of Fair Work Act 2009 (Cth) (FW Act), it is arguable that Milford goes further than this and essentially opens the door for the FWC to deal with a number of other jurisdictional matters relating to general protections dismissal claims.

In addition to dealing with a dispute about whether an employee was dismissed, other issues that could be dealt with by the FWC include disputes about:

1. The date of the dismissal.

2. Whether the dismissal occurred before the purported exercise of a workplace right or before the employer knew about the applicant possessing a protected attribute.

In Milford, the Full Court observed that the finding at first instance that the dismissal took place prior to the purported exercise of the workplace right by Mr Milford was fatal to his claim that his exercise of a workplace right was the reason for the dismissal.

While it is not free from doubt, it is arguable that the FWC has the jurisdiction to determine that an application is not alleging a contravention of the general protections provisions when the date of dismissal occurs prior to the purported reason for dismissal. The argument as to the ability to make this objection is finely balanced and will be largely shaped by the future decisions dealing with the application of Milford.

3. The fact that the employer and employee had settled the dispute between them.

A Full Bench of the FWC recently declined (citing Milford) to issue a certificate to an applicant where a settlement had been reached, despite the applicant contesting that the settlement had occurred.

4. Whether the applicant has alleged a breach of the general protections provisions in the FW Act.

This may be argued in multiple circumstances including:

• where an application is made which is in substance an unfair dismissal claim, and discloses no clear allegation of a contravention of the general protections provisions in the FW Act, or

• where an application alleges dismissal on the basis of an attribute that is not an attribute protected by the general protections provisions.

Summary of Milford

Mr Milford was an employee of Coles. In August 2018, he filed an application with the FWC under s 365 of the FW Act alleging a breach of the general protections in relation to dismissal. Coles objected to the application because, amongst other things, it contended that his application was outside the 21 day time limit on the basis that it disagreed with the date Mr Milford had nominated as his date of dismissal. Alternatively, Coles contended that Mr Milford had not actually been dismissed within the meaning of the FW Act.

At first instance, the FWC, amongst other things, refused to deal with the question of whether there had been a dismissal, stating it did not have the jurisdiction to do so. The FWC did however determine the date of dismissal and subsequently refused to grant an extension for the application, which was out of time.

Mr Milford appealed these decisions to the Full Bench of the FWC who determined that the FWC at first instance was incorrect to determine the date of dismissal. It also found that the FWC was obligated to determine an extension of time based on the date nominated in the application rather than give any consideration to the substantive dispute between the parties as to the date it occurred. Coles lodged an application for judicial review of the Full Bench’s decision with the Federal Court of Australia.

The Full Court of the Federal Court quashed the Full Bench’s decision and observed, amongst other things, that:

• it is open to the FWC to deal with the question of whether there has been a dismissal within the meaning of the FW Act and determine the true date of dismissal in these types of applications

• the FWC is empowered to deal with the “antecedent dispute” of whether an application has been made within the meaning of s 365

• rejected that the power to determine a person’s entitlement to make a general protections application involving dismissal to the FWC is exclusively that of the courts, and

• section 365 of the FW Act established the conditions precedent for an individual’s entitlement to make an application under Part 3-1, namely:

  • whether the person had been dismissed, and

  • whether the person alleges that they had been dismissed in contravention of Part 3-1.

What’s next?

Ultimately, each case is going to turn on its facts and it is likely that the more intertwined the objection is with the substantive merits of the case, the less likely the FWC is to accept that it has jurisdiction to deal with the matter as a preliminary consideration. The scope of Milford will become clearer as employers continue to rely on it when making objections in the FWC’s jurisdiction. However, it is apparent that it has opened a new avenue for employers (and their insurers) to explore for general protections claims involving dismissal, particularly those that plainly lack the jurisdiction to proceed.

Further information

Please contact our Workplace team if you wish to discuss further or have any questions.