Unfair dismisal discontinuance

This passage from an unfair dismissal case appeal deals with the legal nature of the Fair Work Commission’s administrative functions once a case is discontinued.


“A s 365 application under the Act concerns a general protections dispute involving a dismissal. The Commission must deal with the dispute (other than by arbitration).8 This may be by mediation or conciliation, or by making a recommendation or expressing an opinion.9 Upon satisfaction that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, the Commission must issue a certificate to that effect.10 Further, the Commission must advise the parties if it considers that arbitration under s 369, or a general protections court application in relation to the dispute would not have a reasonable prospect of success. The issuance of a certificate is, in most cases, a necessary antecedent to the making of a general protections court application.11


Having received an application made pursuant to s 365 of the Act, the Commission in this matter held a conference where the dispute was conciliated or mediated in accordance with ss 368(1), 592 and 595(2). In so doing, the Commission acted in accordance with the Act.


While a failure to issue a certificate pursuant to s 368(3)(a) may amount to an error going to the Commission’s jurisdiction and may in the right circumstances be appealable pursuant to s 604 of the Act, that is not what has happened here.


On the day following the conference, and prior to the allocation of Mr Nasir’s s 365 application to a Member of the Commission to determine the respondent’s jurisdictional objections, Mr Nasir advised the Commission in writing on 10 May 2023 that he discontinued his application. Such communication was effective to discontinue Mr Nasir’s application in accordance with the Fair Work Commission Rules 2013.12 The closure of the Commission’s file was a consequential administrative step that gave effect to Mr Nasir’s written discontinuance, and did not constitute a “decision” or the operative exercise of a power, with legal force or effect.


As a consequence of Mr Nasir’s written discontinuance, the Commission’s jurisdiction to deal with the matter was at an end. Nor could the Commission proceed to consider the issuance of a s 368(3) certificate in the absence of a Member first determining the respondent’s jurisdictional objections.


The 25 May 2023 email from a staff member of the Commission (as opposed to a statutorily appointed Member)13 advised Mr Nasir of these matters. It referred to the Full Bench decision in AB v Tabcorp Holdings Limited14 which supports the proposition that Mr Nasir’s

10 May 2023 discontinuance can only be set aside by order of a Court. Further, the correspondence advised that a s 368(3) certificate could not be issued in respect of a discontinued application and, in this case, prior to the determination of the respondent’s jurisdictional objections.


  • The “FWC” for the purposes of the Act does not consist of persons who do not hold office. It follows that persons who do not hold office cannot make decisions that may be the subject of an appeal pursuant to s 604(1)(a) of the Act,15 unless a delegation is The power to issue, or refuse to issue, a certificate under s 368(3)(a) cannot be delegated.16 In this respect, the 25 May 2023 email amounts to no more than a statement of the Commission’s view that the matter was discontinued upon receipt of an effective written notice of discontinuance from Mr Nasir.


Conclusion and disposition


For the reasons given, no “decision” of the Commission was made “to not provide a certificate,” either on 9 May 2023 as contended, or at all. Accordingly, the jurisdictional prerequisites for an application to appeal a decision pursuant to s 604 of the Act are not satisfied.


Nor are we satisfied that the interests of justice support an extension of time for the filing of Mr Nasir’s Notice of Appeal more than seven months after the purported “decision” was made.17 Mr Nasir’s Notice of Appeal and written submissions disclose no matter we consider is in the public interest, nor is there any other reason we consider it would be appropriate to grant leave in all the circumstances. Permission to appeal in those circumstances is refused.”



Nasir v Oracle Corporation Australia Pty Ltd (2024) FWCFB 76 delivered  14 February 2024 per Millhouse DP, Slevin DP and Wright DP