FWC’s misinterpretation of its powers

In a recent decision, the full Federal Court has revealed that the FWC misinterpreted the limitations on its powers in establishing whether workers have been dismissed in general protections applications.

In issue

• The Full Court of the Federal Court undertook judicial review of a Fair Work Commission (FWC) Full Bench decision regarding whether the FWC has the authority to establish the merits of general protections applications, and therefore determine if dismissal has taken place.

The background

Coles Supply Chain Pty Ltd (Coles) employed Mr Milford, on a casual basis from 2010. In 2014, Mr Milford sustained an injury and returned to work but his condition worsened resulting in him being unable to work a full shift. Subsequently, there was a dispute as to whether Mr Milford could return to work on light duties but ultimately, Coles did not permit this arrangement.

On 20 June 2018, Mr Milford wrote to Coles seeking a return to work for rehabilitation (the request). This constituted him exercising, or proposing to exercise, workplace rights arising under the Industrial Relations Act 2016 (Qld) and the Workers’ Compensation and Rehabilitation Act 2003 (Qld). He also lodged two ‘safety concerns’ on 2 July 2018, which may be considered a complaint or inquiry concerning his employment.

On 20 July 2018, Coles refused the request on the basis that Mr Milford was no longer an employee and had not been since 31 December 2014. Mr Milford alleged that his dismissal was in contravention of Pt 3-1 of the Fair Work Act 2009 (Cth) (the FW Act) and that dismissal took effect from 20 July 2018.

On 5 August 2018, he purported to file a general protections court application in FWC the under s 365 of the FW Act.

Coles raised a jurisdictional objection to the application because the dismissal took effect from the completion of his last casual shift on 1 October 2014, and there lodged outside the 21 day limit.

Later in the proceedings, Coles raised an alternate and primary argument to the effect that he had not been dismissed at all because his casual employment had ended by the operation of an enterprise agreement. In either case, Coles submitted, the FWC did not have the power to deal with any dispute under s 368 of the FW Act.

General Protections (Part 3-1 of the FW Act)

Section 368 of the FW Act confers authority on the FWC to deal with a dismissal dispute, other than by arbitration, in the event that an application is made under s 365. Section 366 outlines that an application made under s 365 is to be made within 21 days after the dismissal, or within a further period as the FWC allows taking into account exceptional circumstances.

The initial FWC decisions

At first instance the FWC determined that Mr Milford’s employment had come to an end on 1 October 2014, that Coles had made him aware of that circumstance in June or July of 2016 and that the application was out of time (the first decision).^[1]

Mr Milford sought permission to appeal from the first decision to the Full Bench of the FWC. Permission was refused on the basis that Mr Milford could apply for an extension of time and, accordingly, the appeal was premature.^[2] His application for an extension of time was also dismissed (the second decision) resulting in him again appealing to the Full Bench.

Following a review of the first and second decision, the Full Bench 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 correct in fact (the Full Bench decision).^[3]

The Full Bench concluded that the FWC had been mistaken in effectively determining the substantive dispute between the parties on the merits, which it was not empowered to do. The first and second decisions were set aside and referred the dispute to a different Commissioner to be dealt with under s 368 of the FW Act.

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