Cameron Milford v Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre - [2019] FWCFB 8724

[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 8724
Case: [2019] FWCFB 8724
Decision Date: 19 FEBRUARY 2019

CaseChat Overview and Summary

The applicant, Cameron Milford, applied to the Fair Work Commission to address alleged contraventions involving his dismissal by Coles Supply Chain Pty Ltd, trading as Coles Heathwood Distribution Centre. The core issue was whether the dismissal was effective and if the application was lodged in a timely manner. The case was heard by the Full Bench of the Fair Work Commission, which comprised of Deputy President Finn, Commissioner McDonald, and Commissioner Lee. The primary legal issues centred on the date on which the dismissal was deemed to have taken effect and the timeliness of the applicant's application for unfair dismissal remedy.

The court examined whether the dismissal was indeed effective as of 23 August 2017, as contended by the applicant. Additionally, the court needed to determine whether the application for unfair dismissal remedy was filed within the requisite 21 days, as stipulated by section 348 of the Fair Work Act 2009 (Cth). The applicant argued that the dismissal was not effective until 24 August 2017, thereby rendering the application timely. Conversely, the respondent asserted that the dismissal took effect on 23 August 2017, making the application out of time. The court was tasked with resolving these competing interpretations and determining the validity of the application.

The court meticulously reviewed the facts and applicable legal principles, concluding that the dismissal was effective on 23 August 2017. The court found that the applicant's argument that the dismissal was not effective until 24 August 2017 was not substantiated. Consequently, the application for unfair dismissal remedy was deemed out of time, and the application was dismissed. The Full Bench held that the dismissal was indeed effective on 23 August 2017, and since the application was lodged beyond the 21-day period, it was not within the jurisdiction of the Commission to entertain the application.

Orders