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Australia – Full Bench Rules On FWC’s Role In General Protections Disputes.

12 September, 2013

 

Legal News & Analysis – Asia Pacific – Australia  Labour & Employment

 

Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital [2013] FWCFB 6321

 

WHAT YOU NEED TO KNOW

 

  • The Full Bench of the Fair Work Commission has held that when an employee applies to the FWC to deal with a dispute about an alleged general protections contravention involving a dismissal, the FWC does not need to be satisfied that a dismissal has occurred.
  • It is sufficient for an employee to allege that a dismissal has occurred. The FWC must then conciliate the dispute and issue a certificate. The employee may then pursue a general protections application in a Court.
  • Employers will no longer be able to raise jurisdictional points about dismissal when general protections disputes are referred to the FWC for conciliation.

 

A recent decision of the Full Bench of the Fair Work Commission has clarified the FWC’s role in relation to a claim made by an employee alleging that he or she has been dismissed in contravention of the general protections under the Fair Work Act 2009.
There had previously been different opinions within the FWC. The Full Bench has decided that the FWC does not need to be satisfied that a dismissal has occurred before it can conciliate a general protections dispute and issue a certificate, allowing the dismissal to be pursued in Court.

 

The general protections process: a recap

 

An employee may apply to the FWC under section 365 of the Act to deal with a dispute about an alleged general protections contravention involving a dismissal.

 

Initially, the parties must participate in a conference where a Commissioner will conciliate the dispute. While the position had not been clear cut, it has generally been understood that for a conciliation to be held, the Commissioner must be satisfied that a dismissal has occurred.

 

At the conference, if the Commissioner is satisfied that all reasonable attempts to resolve the dispute in relation to the dismissal have been, or are likely to be, unsuccessful, the Commissioner will issue a certificate to that effect. The certificate is a pre-requisite for an application to be made to the Court concerning a general protections contravention in relation to a dismissal.

 

An employee who alleges a general protections contravention concerning matters arising in his or her employment (rather than concerning his or her dismissal) may seek a conciliation conference in the FWC, but the employer must consent to participation. However, attending conciliation is not a requirement – an application can be made directly to the Court.

 

Hewitt v Topero Nominees

 

Ms Hewitt held courses on photography and videography in the media school of her employer, Michaels Camera Video Digital (MCVD). Following a dispute about wages, Ms Hewitt resigned. Ms Hewitt applied to the FWC for it to deal with a dispute about an alleged contravention of the general protections provisions of the Act.

 

Ms Hewitt claimed that MCVD’s conduct forced her to resign which meant that she was dismissed. MCVD said that Ms Hewitt resigned from her employment and was not dismissed.

 

Commissioner Bissett’s decision

 

As MCVD contested Ms Hewitt’s claim that a dismissal had occurred, Commissioner Bissett found it necessary, before holding a conciliation conference, to determine the issue as a preliminary matter.

 

Ms Hewitt argued that the contest about whether she had been dismissed was a matter for the Court, and not the FWC, to determine. She argued that a conciliation conference should be held regardless of whether she was found to have been dismissed.

 

The Commissioner found that the FWC’s general protections jurisdiction is conditioned by the existence of a dismissal. There could be no dispute to deal with in a conference unless this condition was satisfied.

 

The Commissioner found Ms Hewitt resigned and was not dismissed. The Commissioner dismissed Ms Hewitt’s general protections application. Ms Hewitt appealed the decision.


Full Bench decision


On appeal, the issue for determination was the proper construction of section 365 of the Act, and in particular, whether in order hold a conference to deal with a general protections dispute:

 

  • the FWC must be satisfied that the employee has been dismissed; or
  • it is sufficient for an employee to allege that he or she has been dismissed.
 
The Full Bench found that the content and structure of the general protections provisions under the Act do not required a finding that a dismissal has occurred before holding a conciliation conference.


Rather, the legislative context, including the references in the Act to the FWC’s advisory (rather than arbitral) role, support a conclusion that all that is required for a conference to be held is an allegation of dismissal.


With the exception of deciding applications for an extension of time, the Full Bench found that there is nothing in the general protections of the Act which contemplates the FWC receiving evidence or making findings of fact. The Full Bench considered that, if the legislature had envisaged the FWC performing an arbitral role, it would have expressly provided so (as is the case in the unfair dismissal provisions of the Act).


The Full Bench held that to require the FWC to make a finding as to whether a dismissal had occurred as a pre-requisite to holding a conciliation conference would produce an anomaly. The Full Bench considered the hypothetical scenario in which the FWC finds a dismissal has not occurred. If Ms Hewitt commenced Court proceedings and the Court found that a dismissal had occurred, the Court would be prevented under the Act from determining the application insofar as it related to Ms Hewitt’s dismissal. This is because it is a requirement that the FWC must have held a conciliation conference and issued a certificate.


The Full Bench upheld the appeal, quashed the first instance decision and remitted the matter to a different Commissioner to conduct a conciliation conference.

 

MAKING THE CASE: Insights from Geoff Giudice


A person wishing to make a general protections Court application must first make an application to the Fair Work Commission. Unless the FWC certifies that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the person cannot institute Court proceedings.


In this case the Full Bench has decided that when a person makes an application to it, the FWC cannot inquire whether the dispute is a genuine one or not. The result is that anyone who alleges that he or she has a general protections dispute can obtain access to the FWC’s dispute settlement procedures and, if the dispute is unresolved, may commence a general protections Court application regardless of the legal validity of the dispute.


The potential for this ruling to lead to unnecessary expenditure for employers is clear from the facts of the case itself. The finding of the Commissioner who dealt with the case was that the applicant had not been dismissed and so had no valid general protections claim under section 365.


While the Full Bench’s view should be applied by the members of the FWC, it is not binding on the Federal Court. Should the issue come before the Federal Court, either in this or in another case, it is difficult to say what the outcome might be.

 

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For further information, please contact:

 

David Parker, Partner, Ashurst
david.parker@ashurst.com


Jacqui Young, Ashurst
jacqui.young@ashurst.com

 

Geoffrey Giudice, Ashurst
geoffrey.giudice@ashurst.com

 

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