Cameron Milford v Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre - [2019] FWCFB 8735

[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 8735
Case: [2019] FWCFB 8735
Decision Date: 19 FEBRUARY 2019

CaseChat Overview and Summary

In the case of Cameron Milford versus Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre, the applicant sought to address contraventions of the Fair Work Act 2009, specifically in relation to an unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the application to deal with the contraventions was validly made. The primary dispute centred on the timeliness of the applicant's application and whether the dismissal was effective from the date claimed. The respondent argued that the application was out of time and that the dismissal did not occur on the date the applicant claimed.

The court had to decide whether the application to address the contraventions was filed within the requisite time frame as stipulated by the Fair Work Act 2009. Additionally, the court needed to ascertain the precise date the dismissal took effect, as this would determine the timeliness of the application. The court's analysis involved examining the procedural requirements under the Fair Work Act, the evidence presented regarding the date of dismissal, and whether any extensions or exceptions applied to the time limits for lodging the application.

The court concluded that the application was indeed out of time and that the dismissal was not effective from the date the applicant had claimed. The court found that the applicant had not met the procedural requirements for a timely application, and the evidence did not support the applicant's assertion about the effective date of the dismissal. As a result, the court dismissed the application on the grounds that it was not made within the prescribed period, and therefore, the contraventions could not be addressed.

The court made an order dismissing the applicant's application on the basis that it was not lodged within the required timeframe and that the dismissal did not occur on the date claimed. This outcome was based on the court's determination that the applicant had failed to comply with the procedural requirements under the Fair Work Act and that the evidence did not support the applicant's claim regarding the effective date of the dismissal.

Orders