Cameron Milford v Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre - [2019] FWCFB 8738

[2019] FWC 844[Note: This decision has been quashed - refer to Full Bench decision dated 26 November 2019 [2019] FWCFB 7658]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Cameron Milford

Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre

(C2018/4297)

DEPUTY PRESIDENT BOOTH

SYDNEY, 19 FEBRUARY 2019

Application to deal with contraventions involving dismissal – date dismissal took effect – application out of time.

This decision concerns the date that the dismissal of Mr Cameron Milford by his employer, Coles Group Supply Chain Pty Ltd (Coles) took effect for the purposes of s.366 of the Fair Work Act 2009 (the Act).

Mr Milford contends that he was dismissed on 20 July 2018. Coles contends that he was not dismissed, but rather, as he was a casual employee, Mr Milford’s employment with them ended after he worked his last shift on 1 October 2014. Coles submits in the alternative that if he was dismissed then the date that the dismissal took effect was one of two possible dates. It was either 2 October 2014, being the day after he worked his last shift or 13 June 2016, the first date upon which Mr Cameron was told by a workers’ compensation case manager that his employment with Coles had been terminated.

The date that Mr Milford was dismissed by Coles is important because Mr Milford made an application for the Fair Work Commission (the Commission) to deal with a dismissal dispute pursuant to s.365 of the Act on 5 August 2018. Mr Milford alleges that Coles engaged in adverse action, including dismissal, because he proposed to exercise his workplace rights under the Workers’ Compensation Act 2003 (Qld), the Work Health and Safety Act 2011 (Qld) and the Industrial Relations Act 2016 (Qld).

If Mr Milford was dismissed on 20 July 2018 his application would have been made16 days after his dismissal. As the time limit for making such an application is 21 days from the date the dismissal took effect, Mr Milford would be within time to make his application.

Mr Milford has already taken part in a conference before the Commission concerning his dispute but this was not successful in resolving the dispute. In order to progress his application pursuant to s.369 or s.370 of the Act, Mr Milford requires a certificate from the Commission pursuant to s.368(3)(a) of the Act.

If Mr Milford was dismissed on 2 October 2014 or 13 June 2016 his application would have been made out of time by between approximately 2 to 4 years. If this is the case Mr Milford cannot obtain a certificate and progress his application in the absence of an extension of time being granted by the Commission pursuant to s.366(1)(b) of the Act.

The focus of this decision is the date on which the dismissal took effect. If I find that Mr Milford was dismissed on 20 July 2018 then that is the conclusion of the matter as far as I am concerned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Cameron Milford v Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre [2019] FWCFB 8738
Case: [2019] FWCFB 8738
Decision Date: 19 FEBRUARY 2019

CaseChat Overview and Summary

In this matter, Cameron Milford, an employee, sought to address contraventions involving his dismissal from Coles Supply Chain Pty Ltd, which operates as Coles Heathwood Distribution Centre. The dispute was brought before the Fair Work Commission. The central issue was whether the dismissal was lawful and if it occurred on the date specified by the employer, or if it was out of time, rendering the dismissal invalid.

The legal issues the court needed to resolve included the interpretation of the dismissal date and whether any delay in lodging the application to the Commission meant the application was out of time. Additionally, the court considered the implications of any such delay on the employee's right to seek remedies under the Fair Work Act.

The Commission found that the dismissal was indeed out of time due to the delay in lodging the application. It concluded that the dismissal was invalid because the application was not made within the required period. The court emphasized that the timeliness of the application is critical to the jurisdiction of the Commission to hear the matter. The Commission's reasoning was grounded in the statutory provisions governing the timeliness of such applications and the importance of adhering to procedural requirements to ensure fairness and justice in employment disputes. Consequently, the application was dismissed as it was found to be out of time.

Orders