A recent decision of a Full Bench of the Fair Work Commission (FWC) has held that the FWC cannot determine jurisdictional issues, (other than out of time applications), in relation to general protections (adverse action) claims and that its proper role is to hold a conference when handling adverse action claims involving dismissal and issue a certificate of failed conciliation to provide the applicant access to the Courts if the matter cannot be settled.

What happened?

The applicant made an application under section 365 of the Fair Work Act 2009 (Cth) (FW Act) for the FWC to deal with a contravention of the general protections provision of the FW Act involving dismissal (an adverse action claim). 

In this case, the applicant filed an adverse action claim in relation to the termination of her employment.  Before the employment ended, the applicant and her employer had had a dispute about wages.  The applicant alleged that her employer had been verbally aggressive towards her and that, as a result of the employer’s conduct, she was forced to resign.  The employer argued that the applicant had voluntarily resigned from her employment, that she had not been dismissed and so she could not bring an adverse action claim in relation to ‘dismissal’.

At first instance, the FWC therefore proceeded to consider if there had been a dismissal at the initiative of the employer as a preliminary jurisdictional issue prior to holding a conference.  On that question, the FWC found that the employee had not been forced to resign as alleged and was not dismissed.  On that basis, the FWC held that, as there was no dismissal, there could be no dispute to be dealt with in a conference, and so dismissed the application. The applicant appealed the  decision.

The Full Bench decision

The issue on appeal was whether the FWC must be satisfied that the applicant in an adverse action claim involving a dismissal has been ‘dismissed’ before the FWC can hold a conference in relation to the matter.

The Full Bench held that:

  • the FWC does not need to be satisfied that the applicant has been ‘dismissed’ before holding a conference; and
  • it is sufficient that the FWC has before it an application that on its face alleges a dismissal in contravention of the general protections (adverse action) provisions of the FW Act in order to hold a conference.

The Full Bench reached these conclusions because it found that in the context of the legislative scheme:

  • it is sufficient for an applicant to allege that they have been dismissed for the FWC to be required to hold a conference in relation to the matter; and
  • the proper role of the FWC is to ‘advise the parties’ if it considers, taking into account all of the materials before it, that the application would not have a reasonable prospect of success.

The Full Bench remitted the matter to a different member of the FWC to conduct a conference in relation to the matter.

Lesson for employers

The effect of the Full Bench decision is to confirm that the FWC must hold a conference in relation to the matter, provided the FWC has before it an application made within the statutory timeframe that on its face alleges a dismissal.

As a result, employers are not able to raise jurisdictional objections (other than an out of time objection) in the FWC in relation to general protections (adverse action) claims involving dismissal.  Any such jurisdictional objection is properly a matter to subsequently be determined by the Federal Court of Australia or the Federal Circuit Court of Australia if the proceedings cannot be resolved in conference before the FWC and the applicant elects to proceed with his or her claim to the Court.