General protections cases; whether there was a dismissal

Until quite recently the Fair Work Commission has taken the view in general protections’ cases in which there is a dispute about whether or not the employee was dismissed that the Commission cannot conciliate the claim without the consent of the employer for it to do so.

Recently however the Federal Court has determined that where an application is lodged under section 365 (a dismissal dispute) and the employer disputes whether there was a dismissal or that the claim has been made out of time, the Commission must resolve such a jurisdictional issue before its powers under section 368 to deal with a dispute (including conducting a conciliation) can be exercised. In other words, the Commission cannot issue a certificate which is a condition of the applicant taking the matter to the Federal Circuit Court until this has occurred.

Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 delivered 20 September 2020