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

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

The Full Bench committed jurisdictional error by construing ss 365, 366 and 368 of the Fair Work Act 2009 (Cth) as requiring the Commission to accept the applicant's alleged dismissal date and as denying the Commission power to determine whether and when a dismissal occurred for the purpose of deciding whether its s 368 powers were enlivened. On the proper construction, an application under s 365 requires a dismissal in fact and compliance with the time limit in s 366, or an extension of time; disputes about those matters are antecedent jurisdictional questions the FWC may determine, though not conclusively.

Jurisdiction
Australia
Judgment Date
11 September 2020
Procedural Posture
Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Full Court Review of a Fair Work Commission Full Bench Decision Allowing an Appeal From Refusal of an Extension of Time
Outcome
Application for judicial review allowed; the Full Bench decision was quashed and the matter remitted to the Fair Work Commission Full Bench to determine the application for permission to appeal, and any appeal if permission is granted, according to law. No order as to costs.
Legal Topics
['fair Work Act 2009 (cth) General Protections Dismissal Dispute' 'fair Work Commission Jurisdiction' 'extension of Time Under S 366' 'jurisdictional Error' 'certiorari and Mandamus']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['fair Work Act 2009 (cth) General Protections Dismissal Dispute' 'fair Work Commission Jurisdiction' 'extension of Time Under S 366' 'jurisdictional Error' 'certiorari and Mandamus']

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Procedural Posture

Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Full Court Review of a Fair Work Commission Full Bench Decision Allowing an Appeal From Refusal of an Extension of Time

Legal Issues

  1. 1 ["Whether the Fair Work Commission Full Bench misconstrued the provisions of the Fair Work Act 2009 (Cth) defining the Commission's authority to deal with a general protections dismissal dispute under s 368." 'Whether the Commission may determine whether an applicant has been dismissed in fact, and when the dismissal took effect, for the purposes of ss 365 and 366.' 'Whether the date of dismissal must be assumed to be the date alleged by the applicant in an application under s 365.' "Whether the Full Bench's construction involved jurisdictional error amenable to relief under s 39B of the Judiciary Act 1903 (Cth)."]

Ratio Decidendi

The Full Bench committed jurisdictional error by construing ss 365, 366 and 368 of the Fair Work Act 2009 (Cth) as requiring the Commission to accept the applicant's alleged dismissal date and as denying the Commission power to determine whether and when a dismissal occurred for the purpose of deciding whether its s 368 powers were enlivened. On the proper construction, an application under s 365 requires a dismissal in fact and compliance with the time limit in s 366, or an extension of time; disputes about those matters are antecedent jurisdictional questions the FWC may determine, though not conclusively.

Court Disposition

Application for judicial review allowed; the Full Bench decision was quashed and the matter remitted to the Fair Work Commission Full Bench to determine the application for permission to appeal, and any appeal if permission is granted, according to law. No order as to costs.

Orders

  • ['A writ of certiorari issue, quashing the decision of the second respondent (constituted by a Full Bench) made on 26 November 2019 in C2019/4735.' "A writ of mandamus issue requiring the second respondent (constituted by a Full Bench) to hear and determine the respondent's application for permission to appeal (and,...