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General protections claims: full court clarifies powers

Determining whether an employee had been dismissed before considering his general protections claim.
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General protections claims: full court clarifies powers

General protections claims: full court clarifies powers

23 September 2020

By Mike Toten

A Fair Work Commission full bench had misconstrued its powers in relation to determining whether an employee had been dismissed before considering his general protections claim, a full court of the Federal Court has ruled.

The key issues were: when the employee became aware that he was dismissed, and therefore whether he lodged his general protections claim within the required time limit (21 days after dismissal).


Facts of case

A Coles employee initially lodged a general protections claim against the company almost four years after he ceased working for it. That application was rejected for being made outside the 21-day time limit. The employee appealed against that decision, but failed on the grounds that he had been aware of dismissal since 2016 but did not lodge his claim until 2018, and also that Coles would be prejudiced if a time extension was approved.

He sought leave to appeal against the second decision as well, and the Full Bench then ruled that the relevant date for time extension purposes was the date alleged by the employee (2018). Coles then applied for judicial review of that decision, which went to the Full Court.

The employee claimed that adverse action was taken against him in 2018 and that he was dismissed in that year, but Coles claimed he was dismissed in 2014, which was the last year he actually worked for it. Coles argued that any employee would be able to concoct a “dismissal date” that ensured his/her application became compliant.

The employee was injured at work in 2014, which prevented him from returning to work. In 2018, he contacted Coles seeking a return to work for rehabilitation. This request, which included two emails expressing “safety concerns” amounted to him exercising a workplace right. Coles replied that it would not meet his requests and that he had ceased to be a Coles employee in 2014. This was the first time it had told him he was no longer employed.

The issue in dispute was whether the employee could be granted an extension of time beyond the normal expiry date in which to lodge his claim.

The Full Bench did not make a finding as to whether the employee had been dismissed in the manner claimed in his application to the FWC. In not doing so, it relied on a previous Full Bench decision that it did not have the power to decide that (Appeal by Hewitt, [2013] FWCFB 6321, 3 September 2013). That decision held that the FWC could not dismiss general protections claims on jurisdictional grounds and had to convene a conference when an employee lodged a claim. It had overturned the previous finding that it had to be established whether an employee had actually been dismissed before considering any general protections claim.

In the latest case, the Full Court commented that the Hewitt decision meant that the FWC could decide when a dismissal had occurred, but not whether it had occurred.

Coles maintained that it dismissed the employee in 2014, but then presented an alternative argument that he had not been dismissed at all because the enterprise agreement that covered him had expired. The employee’s claim failed initially because it was decided that he was dismissed in 2014, and that Coles notified him of that in 2016. However, his claim was that he was dismissed for exercising a workplace right in 2018 (enquiring about returning to work). The FWC rejected his application for an extension of time to lodge his claim, thereby ruling that it lacked jurisdiction to deal with his case.

The Full Bench then ruled that the date of dismissal had to be the one alleged by the employee in his claim, irrespective of whether the claim was factually correct.

The Full Court ruled that the power to decide whether an employee could make a general protections claim could not be deferred to exclusively to the Federal Court or Federal Circuit Court. The FWC still has the power to make such a determination but “not conclusively” (meaning that an employee can still challenge the decision). Otherwise, the FWC would be bound to deal with claims that employees were not entitled to make (such as concocted dates as argued by Coles – see above), and the respondent could not lodge any jurisdictional objection until after proceedings that it was compelled to take part in had commenced.

Coles’ application for review sought a declaration that dismissal occurred in 2016 (making the employee ineligible to lodge a claim) plus clarification of the meaning of the relevant provisions of the Fair Work Act 2009.


Decision

The Full Court quashed the Full Bench’s decision and ordered that the employee’s appeal be reconsidered and reheard if permission to appeal was granted. It stated that the scenario provided for by the Full Bench decision “could not sensibly arise”. It said that if the Full Bench did not grant permission to appeal, the original decision would bind the parties unless jurisdictional error affected it. It rejected making the declarations sought by Coles.

This decision negates the conclusions drawn in the Hewitt case above.

The bottom line: This decision means that, with general protections claims, the FWC retains the power to determine whether a dismissal actually occurred, and therefore whether the employee is entitled to lodge the claim and apply for an extension of lodgment time. The power is not exclusive, however, as either party can still challenge the determination. So the bottom line is that the FWC cannot refuse to address the issue of whether dismissal occurred prior to handling the claim.

In order for an employee to pursue a general protections claim in court, or for either party to seek arbitration by the FWC, the FWC has to issue a certificate stating that its attempts to conciliate the matter were unsuccessful.


Read the judgment

Coles Supply Chain Pty Ltd v Milford, [2020] FCAFC 152, 11 September 2020

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