Teresa Edwards v The trustee for the Healthways Medical Group Unit Trust

[2023] FWC 2315

[2023] FWC 2315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Teresa Edwards
v

The trustee for the Healthways Medical Group Unit Trust

(C2023/4699)

DEPUTY PRESIDENT COLMAN MELBOURNE, 11 SEPTEMBER 2023

Section 365 – jurisdictional objection re no allegation etc – objection dismissed.

1. This is an edited version of a decision delivered ex tempore on transcript earlier this morning. Teresa Edwards has made a general protections application under s 365 of the Fair Work Act 2009 (Act). The trustee for the Healthways Medical Group Unit Trust (respondent) objected to the application. Section 365 states that if a person has been dismissed and the person alleges that the dismissal contravened Part 3-1, the person may apply to the Commission to deal with the dispute. The respondent objected to the application on the basis that the second requirement had not been met. Where a respondent raises a jurisdictional objection, the Commission must determine it (see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152).

1. The Commission’s form F8 asks applicants to identify which provisions in Part 3-1 have been contravened. In her F8, Ms Edwards has indicated that she believes her dismissal contravened ss 340, 344 and 352 of the Act. The respondent said that Ms Edwards had not explained how Part 3-1 of the Act was contravened. I agree. However, this is a matter going to the merits of the application, not the jurisdictional question of whether the applicant alleges that the dismissal contravened Part 3-1. The Commission has no power to determine the merits. The respondent contended that, to the extent that Ms Edwards has alleged contraventions of the Act, they were without any foundation. But this too goes to the merits, not jurisdiction. By indicating in her F8 the sections that she believes to be engaged, Ms Edwards has alleged that her dismissal was in contravention of Part 3-1.

1. The respondent invited the Commission to dismiss the application on any other basis that it sees fit. However, there is no other proper basis for the Commission to dismiss the application. Section 587(1) allows the Commission to dismiss an application on the grounds that it is not made in accordance with the Act (s 587(1)(a)), is frivolous or vexatious (s 587(1)(b)), or has no reasonable prospects of success (s 587(1)(c)). In this case, the application was made in accordance with the Act. And the Commission is prohibited by s 587(2) from dismissing an application under s 365 on either of the grounds in ss 587(1)(b) and (c)).

1. I note that s 587(1) commences with the words: ‘Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:...’ These words are patently not a grant of power permitting the Commission to dismiss an application for any reason. What these words mean is that the power to dismiss applications under ss 587(1)(a), (b) and (c) does not limit the Commission’s ability to dismiss applications under the various substantive provisions of the Act (for example, to dismiss an application under s 394).

1. It is clear that the jurisdictional requirements of s 365 have been met in this case. It is not disputed that Ms Edwards has been dismissed. It is clear that she also alleges that the dismissal contravened Part 3-1. The objection is therefore dismissed. The application will shortly be listed for a conciliation conference.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant
M. Tomisich for the respondent

Hearing details:

2023
Melbourne
11 September

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