What are the implications of Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 on the jurisdictional boundaries of the FWC in general protection applications involving dismissals?

In the recent decision of Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, the Full Court of the Federal Court of Australia found that the Fair Work Commission (‘the FWC’) has the authority to determine when and whether an employee’s dismissal has occurred in relation to a general protections application. 

Background

In Coles Supply Chain Pty Ltd v Milford, a casual employee of Coles made an application to the FWC under section 365 of the Fair Work Act 2009 (Cth) (‘the FWA’) claiming dismissal in contravention to the listed rights in this section. The employee was a casual worker who was injured at work in 2014. In 2018 after not working for four years, the employee contacted Coles seeking to return to work. The employee received correspondence from Coles stating they could not accept his request to return due to the employment relationship ending in 2014 and subsequently filed an unfair dismissal application to the Fair Work Commission.

In response, Coles filed two jurisdictional objections: that the application was filed after 21 days of dismissal since their employment had ended at the last shift he worked in 2014, and that the employee had not been dismissed by reason of his status as a casual employee and the operation of the applicable enterprise agreement.

Section 366 of the FWA requires that an application made under section 365 must be made within 21 days unless there are special circumstances which have caused the delay.

After the claim was initially dismissed in the FWC due to the application contravening s366 of the FWA, the matter was appealed and heard by the Full Bench of the FWC. It was held that the FWC did not have the jurisdiction to determine a factual dispute which would affect the success of the application.

This recent decision by the Full Court of the Federal Court of Australia overturns the decision of the Full Bench and clarifies the jurisdiction of the Fair Work Commission. 

Findings of the Federal Court

The Federal Court found that the Full Bench misconstrued the provisions of the FWA defining the boundaries of the FWC’s authority to deal with the dispute and ordered that the previous decision by the Full Bench should be quashed. Additionally, the court determined that if the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has no authority to “deal with the dispute” under s 368 of the FWA.  

This decision grants full jurisdiction of the FWC to determine:

• whether a person is entitled to make an application given the purported timeframe; and
• whether a person has been dismissed.

Implications of the case: 

This judgment affirms the power of the Fair Work Commission to determine questions of jurisdictional objections pertaining to applications brought under section 365 of the FWA, even if it results in the dismissal of the application. 

Employers may also consider challenging the claims brought forward by the employee regarding facts of dismissal e.g. dates and the nature of the termination of employment. Employees bringing these claims will be required to have their matter proceed to a Jurisdictional Objections Hearing before the FWC instead of progressing the claim to Arbitration within the FWC or filing the claim with either the Federal Court of Australia or the Federal Circuit Court. This will result in a potentially more lengthy and expensive legal process for such claims in the future.