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December 2020

Dealing with jurisdictional objections to general protections claims

Dealing with jurisdictional objections to general protections claims

The Case

Coles Supply Chain Pty Ltd v Milford (2020)

Coles Supply Chain Pty Ltd (Coles) employed Mr Milford as a casual store worker. On 5 August 2018, Mr Milford filed a general protections claim involving dismissal with the Fair Work Commission (FWC). Mr Milford alleged the dismissal had occurred on 20 July 2018.

In the FWC, Coles raised the following jurisdictional objections:

  • the dismissal had occurred on 1 October 2014, and therefore, the general protections claim was out of time; and
  • Mr Milford had not been dismissed, as his employment came to an end by operation of an enterprise agreement.

The FWC found at first instance that Mr Milford’s employment had been terminated on 1 October 2014 and also dismissed his application for an extension of time.

Mr Milford appealed to the Full Bench of the FWC. The Full Bench of the FWC found that the date of Mr Milford’s dismissal was 20 July 2018 – the date Mr Milford had asserted on his application. The Full Bench said to make another determination was to determine the matter on its merits, which it could not do.

Coles appealed the decision of the Full Bench of the FWC to the Full Court of the Federal Court.

The Verdict

The Full Court of the Federal Court held that:

  • the Full Bench of the FWC had misconstrued the FWC’s powers to deal with the dispute; and
  • the FWC had the power to determine if a dismissal had occurred, the date of the dismissal and if the application was out of time.

The Lessons

It is important to consider, at an early stage of a claim, whether there are any jurisdictional objections to raise, such as:

  • whether a dismissal has occurred;
  • the date of the dismissal; and
  • whether an application is out of time.

If the jurisdictional objections are successful, the matter will not progress, as the FWC will not have the power to conciliate the matter or issue the certificate. Considering any possible jurisdictional objections early will save time and costs.

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