General protections claims which are based upon an employee claiming to having been dismissed in contravention of them, are commenced at first instance in the Fair Work Commission which ordinarily will convene a conference between the parties to attempt to resolve the claim by agreement, generally using conciliation as the process.
Often, the employer will contend that the employee was not dismissed, contending for example that the employment was ended by the employee’s resignation. In this event it is not uncommon for the employee to argue that the resignation was “forced”, known often as constructive dismissal.
What are the Commission’s procedures in this case? The following decision of the Commission provides the answer.
“Introduction
[1]
This is an appeal concerning an application made by Jennifer Baker under s 365 of the Fair Work Act 2009 (Cth) (the FW Act) for the Commission to deal with a general protections dispute involving dismissal. A certificate was issued in relation to the application under s 368(3) of the FW Act by a member of the Commission on 14 September 2026 in which the Commissioner indicated she was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.
[2]
The respondents to the application, Aurecon Australasia Pty Ltd and Tristan Meo (collectively referred to in this decision as Aurecon), contend that the Commissioner erred in issuing a certificate under s 368(3) without first determining a jurisdictional objection they made, namely, that Ms Baker had not be ‘dismissed’. Aurecon’s submission is correct. Permission to appeal should be granted, the appeal allowed and the decision to issue the certificate quashed. The jurisdictional objection will need to then be determined by a member of the Commission.
Factual background
[3]
The background to the appeal is as follows. On 23 June 2026, Ms Baker made an application under s 365 of the FW Act. In the application, Ms Baker alleged she had been constructively dismissed. She alleged that the constructive dismissal was a form of adverse action for the purposes of s 342(1) and that the action involved a contravention of s 340 as it was taken because Ms Baker had exercised workplace rights and/or to prevent her from
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exercising further workplace rights. Ms Baker also alleged that other forms of adverse action were taken against her by Aurecon not involving dismissal.
[4]
On 7 July 2026, Aurecon filed a Form F8A – Response to a general protections dismissal application. In its response, Aurecon contended (among other things):
Having regard to the test for constructive dismissal, the Applicant was not constructively dismissed. Rather, she elected to resign of her own volition. This fact alone defeats the Applicant’s entire claim in this matter. If she was not constructively dismissed, her entire Application is jurisdictionally flawed.
[5]
Section 5 of the Form F8A is entitled ‘Jurisdictional objection to the Commission conducting a conference’ and question 5.1 asks a respondent whether they object to the Commission conducting a conference on jurisdictional grounds. The form states that, if a respondent does not fill out this section of the form, the Commission will proceed to organise a conference and ‘will issue a certificate if the matter is not resolved’. Aurecon left question 5.1 blank as follows:
5.1 Does the Respondent object to the Commission conducting a conference on jurisdictional grounds?
□ Yes – go to question 5.2
□ No – skip question 5.2
[6]
Question 5.2 asks, if question 5.1 was answered ‘yes’, what jurisdictional objection is made. In relation to that question, Aurecon answered:
5.2 If you answered yes to question 5.1, what is the objection?
The Applicant was not dismissed. Rather, the Applicant resigned from her employment with the First Respondent of her own volition.
[7]
On 13 August 2026, a notice of listing was issued for a conference to occur on 9 September 2026. No party objected to the listing of the conference. On 9 September 2026, a conference was conducted by a staff conciliator employed by the Commission. The matter did not resolve at the conference. At 5.15pm on 9 September 2026, the Commission emailed the parties confirming that the matter had not settled and that ‘a report to this effect will be sent to a Commission Member’. The communication further stated that a certificate would be issued under s 368 if the member was satisfied that reasonable attempts to resolve the matter have been, or are likely to be, unsuccessful.
[8]
At 12.12pm on 10 September 2026, solicitors for Ms Baker sent an email to the Commission stating that they were instructed to respectfully request that a certificate be issued. At 12.39pm on 10 September 2026, solicitors for Aurecon communicated to the Commission as follows:
The Respondent objects to the issue of the certificate on the basis that the Respondent has raised a jurisdictional objection that the Applicant was not dismissed. The Respondent respectfully submits that the jurisdictional objection must first be determined before any certificate can be issued by the Commission.
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[9]
At 1.59pm, solicitors for Ms Baker responded stating that it wished to place on the record that there was no jurisdictional objection raised on the Form 8A Response and the matter has already been to a conciliation conference and was not successfully resolved. At 2.24pm on the same day, solicitors for Aurecon sent further correspondence asserting that it had raised a jurisdictional objection in the Form F8A.
[10]
At 9.32am on 14 September 2026, the Commissioner issued a certificate under s 368(3) of the FW Act. At 3.37pm on 14 September 2026, solicitors for Aurecon communicated with the Commission and requested that the Commissioner revoke the decision to issue the certificate under s 603 of the FW Act on the basis that it had raised a jurisdictional objection which had not been determined. At 4.48pm on 14 September 2026, solicitors for Ms Baker communicated with the Commission and stated that she objected to the revocation of the certificate.
[11]
On 15 September 2026, the Commissioner’s chambers informed the parties that the Commission would not be revoking the certificate. The Commissioner stated that Aurecon did not elect to pursue its jurisdictional objection through question 5.1 of the Form F8A and instead chose to participate in the conciliation conference, following which a certificate under s 368 was issued. On 23 September 2026, Aurecon filed a notice of appeal seeking permission to appeal and to appeal from the decision.
Further evidence on appeal
[12]
Aurecon seeks to rely upon further evidence on appeal in the form of a witness statement of Jason Donnelly, a partner at National Workplace Lawyers, and the conciliation report prepared by the staff conciliator following the conference which took place on 9 September 2026. A redacted version of the conciliation report was provided to the parties by the Commission upon request by Aurecon. There is no dispute that the conciliation report was made available to the Commissioner.
[13]
The Commission is entitled to admit further evidence on appeal under s 607(2) of the FW Act. The principles ordinarily applied to the discretion to admit new evidence on appeal are set out in the judgment of Clarke JA in Akins v National Australia Bank (1994) 34 NSWLR 155. We accept that it is, in a general sense, appropriate to receive the further evidence on appeal. The issues raised in the appeal require consideration of the manner in which the proceedings were conducted at first instance, including whether Aurecon had maintained its jurisdictional objection. It is necessary for evidence to be received as to the manner in which the proceedings were dealt with.
[14]
We do not understand Ms Baker to generally object to the Full Bench receiving the further evidence on appeal. She did, however, object to those parts of the witness statement of Mr Donnelly and the conciliation report which disclose or purport to recount private communications which occurred during the conciliation conference. The objections relate to paragraphs 7 and 8 of Mr Donnelly’s witness statement and the whole of the conciliation report. The conciliation report and paragraph 8 of Mr Donnelly’s statement indicate that Aurecon raised the jurisdictional objection with the conciliator and that it pressed for the jurisdictional objection to be determined.
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[15]
We consider those parts of the witness statement of Mr Donnelly, and the conciliation report should be received as further evidence in relation to the appeal. Ms Baker submits that Aurecon elected not to pursue the jurisdictional objection and, as a result, it was open to the Commissioner to issue the certificate under s 368. In those circumstances, we consider it is appropriate to receive evidence as to whether Aurecon raised the jurisdictional objection in the conference. We acknowledge that Ms Baker submits that the objective procedural history known to both parties could be relevant. We do not consider that it is appropriate to determine that question when deciding whether to admit the evidence. On the case advanced by Aurecon, the evidence is potentially relevant.
Grounds of appeal
[16]
Aurecon advances four grounds in the notice of appeal. Ground 1 contends that the Commissioner erred by issuing the certificate under s 368 without first determining its jurisdictional objection that Ms Baker had not been dismissed. Grounds 2 and 3 contend that, if the Commissioner did determine the jurisdictional objection prior to issuing the certificate, the Commissioner denied Aurecon procedural fairness and determined its jurisdictional objection on the erroneous basis that Aurecon did not pursue the objection. Ground 4 contends that the Commissioner refused to revoke the certificate on the erroneous basis that Aurecon had not, in fact, raised a jurisdictional objection and had elected not to pursue an objection by participating in a conciliation conference. For reasons which will become apparent, it is necessary only to deal with ground 1.
Whether the Commission should have issued a certificate under s 368(3)?
[17]
Section 365 of the FW Act allows an application to be made to the Commission for it to deal with a general protections dispute involving dismissal. The Workplace Relations Legislation Amendment (Building Cooperative Workplaces No 1) Act 2026 (Cth) repealed and replaced s 365 of the FW Act to make it clear that a person who simply alleges that they have been dismissed may apply to the Commission under that section. This involved a departure from s 365 as previously enacted which required the person to have ‘been dismissed’. Those amendments apply in relation to an application made on or after the commencement of the amendments on 7 July 2026: see clause 134 of Schedule 1 to the FW Act.
[18]
The provisions as they existed prior to the amendments apply in Ms Baker’s case. As such, s 365 permitted Ms Baker to make an application under that section only if she had ‘been dismissed’. In Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 (Milford), the Full Court of the Federal Court concluded that the Commission was required to determine a dispute as to whether an application had in fact been dismissed as a precondition to dealing with a dispute under s 368. The Full Court (Rares, Collier and Charlesworth JJ) explained (at [64]-[65]):
… when s 368 refers to an “application” made under s 365, it refers to an application validly made by a person entitled to make it. The text and structure of s 365 is such that there has been a dismissal in fact and that there is an allegation that the dismissal was for a prohibited reason. Construed in the context of s 365, when s 368 refers to “the dispute” it must be taken to refer to the dispute agitated by the allegation: that is, the allegation concerning the reason for the dismissal, and not an allegation of dismissal per se. …
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It is not difficult to conceive of cases where the parties may be in “dispute” as to whether or not a person has been dismissed. Most often that will occur in cases where the applicant alleges (and the respondent contests) that he or she has been constructively dismissed. But that dispute is not to be confused with the dispute forming the subject matter of the FWC’s conciliation powers as just described. A dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes.
[19]
The Full Court made clear (at [67]) that a dispute as to whether an application had been dismissed constitutes an antecedent dispute going to the entitlement of the applicant to apply and must be resolved before powers under s 368 can be exercised.
[20]
Ms Baker accepts that, if Aurecon had maintained the dismissal issue as an anterior jurisdictional objection, it required determination before the Commission proceeded under s 368. Ms Baker submits that, viewed objectively and having regard to the words and conduct of Aurecon as a whole, the objection was not maintained. Ms Baker refers, cumulatively, to the fact that question 5.1 was not answered affirmatively, no objection was made when the matter was listed for conciliation, no objection was made when legal representation for that conciliation was granted, Aurecon attended and participated in the conference without stating at its commencement that their participation was conditional, any discussion of the jurisdictional objection occurred only during a private session after the conference had commenced and that the first open assertion that the jurisdictional issue must be determined before the certificate could be issued came only after the conciliation had concluded.
[21]
The decision of the Full Court in Milford resulted in some uncertainty as to how the Commission was required to deal with an application under s 365. The Full Court did not expressly say that the Commission was required, in all cases, to determine whether a person who made an application under s 365 had in fact been dismissed prior to performing its functions under s 368. The Court focused on the existence of a dispute arising from a respondent asserting that there has been no dismissal. It may be, as suggested by Aurecon, that the Commission was required to determine whether the applicant was dismissed in every case in order to satisfy itself that the Commission’s jurisdiction was properly invoked. The Court might have simply assumed that the Commission would generally be satisfied that the applicant had been dismissed in the absence of any dispute about that matter.
[22]
As a result of the focus in Milford on whether there was a dispute about whether there had been a dismissal, it has been assumed that a respondent, having disputed that a dismissal took place, could withdraw the objection: Zhou v Yang [2025] FWCFB 206 at [13]. If the respondent no longer disputed that a dismissal had taken place, it would be open to the Commission to be satisfied as to its jurisdiction by reason of the absence of any dispute the applicant had been dismissed. We agree with the submission of Aurecon that, if there remained a dispute as to whether the applicant had been dismissed, Milford dictates that the Commission was required to determine that dispute prior to ‘dealing’ with the dispute under s 368: see also Lipa Pharmaceuticals Ltd v Jarouche [2023] FWCFB 101; (2023) 324 IR 375 at [4] (Lipa Pharmaceuticals).
[23]
In this matter, none of the circumstances referred to by Ms Baker support the conclusion that there was not a dispute as to whether she was dismissed. It is true that Aurecon failed to select either the ‘Yes’ or ‘No” box in question 5.1 of the Form F8A. However, in answer to
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question 5.2, Aurecon asserted that Ms Baker was not dismissed but, rather, had resigned. Despite the failure of Aurecon to answer question 5.1, the Form F8A makes plain that there was a dispute as to whether Ms Baker was dismissed.
[24]
Nothing that followed can be construed as a concession on the part of Aurecon that Ms Baker had been dismissed or that there was no longer a dispute about that matter. Ms Baker relies primarily on the conduct of Aurecon in not objecting when the matter was listed for a conference and attending and participating in the conference. The matter was listed for conference without the dismissal issue being determined. That presumably occurred because Aurecon failed to answer question 5.1 in the Form F8A. It should not have: Lipa Pharmaceuticals at [23]. The fact that Aurecon attended the conference does not support an inference that it no longer disputed that there had been a dismissal. Nothing which occurred prior to, or following, the conference supported such an inference. Aurecon did not withdraw its objection prior to the conference. Immediately following the conference, it reiterated that it contended that Ms Baker had not been dismissed and pressed for the jurisdictional issue to be determined. It is unnecessary to rely, in this respect, on the fact that Aurecon communicated to the conciliator that it pressed its jurisdictional objection.
[25]
Ms Baker does not submit that Aurecon conceded the factual proposition that she had been dismissed. Rather, Ms Baker submits that Aurecon did not maintain the contrary contention ‘as an anterior objection to conciliation’. The submission cannot be accepted. Aurecon could not waive the requirement for the Commission to be satisfied Ms Baker had been dismissed as a precondition to performing its functions under s 368. The parties’ consent cannot clothe the Commission with jurisdiction it does not have: PT Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33; (2012) 247 CLR 240 at [16] (French CJ, Gummow, Hayne and Crennan JJ); Minister for Local Government v Blue Mountains City Council [2018] NSWCA 133; (2018) 97 NSWLR 1132 at [51] (Leeming JA with whom Bathurst CJ and McColl JA agreed). Aurecon’s conduct would only justify a certificate being issued without determining the dismissal issue if it withdrew any dispute that a dismissal had occurred so as to justify the Commission being satisfied of its jurisdiction on the basis that the matter was not contested. Aurecon did not do so. On any view, there was a dispute as to whether Ms Baker had been dismissed when the certificate was issued.
[26]
For those reasons, it was not open to the Commissioner to issue a certificate under s 368(3) without first determining whether Ms Baker had been dismissed. It is unnecessary to address the remaining grounds of appeal. Grounds 2 and 3 are advanced if, in the alternative, the Commissioner can be understood to have determined Aurecon’s jurisdictional objection. We agree she did not do so, and those grounds do not arise. Ground 4 concerns the decision to refuse to revoke the certificate. It is unnecessary to address that ground in circumstances in which the certificate itself will be quashed.
Permission to appeal
[27]
Aurecon can appeal the decision to issue the certificate only with permission under s 604(1) of the FW Act. The Commission is required to grant permission to appeal by s 604(2) if it is satisfied that it is in the public interest to do so and, otherwise, has a general discretion as to whether to grant permission to appeal. The fact that s 365 has now been amended reduces the general importance associated with the issues raised in the appeal. We are nonetheless
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satisfied that it is in the public interest to grant permission to appeal and we would, in any event, exercise the residual discretion to grant permission to appeal.
[28]
We understand that Ms Baker would prefer to avoid the duplication involved in the jurisdictional issue being determined by the Commission and then potentially again being determined by the courts. The potential for that undesirable procedural outcome is the result of the decision in Milford and is now avoided by the amending legislation. However, Milford required the jurisdictional objection to be determined in Ms Baker’s case. In circumstances in which the certificate was not validly issued, the certificate would be liable to be quashed by a court. In that event, the parties would have to return for the jurisdictional objection to be decided by the Commission at a still later time. That outcome would not be in the public interest, or the interests of any of the parties.
Conclusion and disposition
[29]
It was not open to the Commissioner to issue a certificate under s 368(3) of the FW Act. Permission to appeal should be granted, the appeal allowed and the certificate quashed. The Full Bench makes the following orders:
(a)
Permission to appeal be granted;
(b)
The appeal be allowed;
(c)
The certificate issued in matter number C2026/3976 on 14 September 2026 be quashed; and
(d)
The application in matter number C2026/3976 be remitted to the Commissioner.”
Aurecon Australasia Pty Ltd and Another v Jennifer Baker [2026] FWCFB 283 delivered 21 October 2026 per Gibian VP, Wright DP and Grayson DP