1
Fair Work Act 2009
s.604—Appeal of decision
Cameron Milford
v
Coles Supply Chain Pty Ltd
(C2019/1507)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT
SYDNEY, 5 APRIL 2019
Appeal against decision [2019] FWC 844 of Deputy President Booth at Sydney on 19
February 2019 – date of dismissal for purposes of s 366 – permission to appeal refused
Introduction and background
[1] Mr Cameron Milford has lodged an appeal, for which permission is required, against a
decision issued by Deputy President Booth on 19 February 20191 (Decision) in which she
concluded that Mr Milford’s employment with Coles Supply Chain Pty Ltd (Coles) ended on
1 October 2014, and that his general protections dismissal application under s 365 of the Fair
Work Act 2009 (FW Act), lodged on 5 August 2018, was therefore out of time.
[2] We precis the relevant background. Mr Milford was engaged by Coles as a casual
store worker from early 2012. On 24 May 2014 he injured his shoulder and lodged a workers’
compensation application, in which he also claimed to have sustained a psychological injury.
The application was processed by Wesfarmers Limited, the group self-insurer. In July 2014
Mr Milford received a WorkCover medical certificate stating that he was fit for light duties.
He returned to work on 24 September 2014 but his shoulder condition worsened, and after
working a casual shift on 1 October 2014, he did not work for Coles again.
[3] On 12 October 2014 Mr Milford sent Coles a medical certificate stating that he was
again fit for light duties. Coles replied that before he could return to work, Mr Milford needed
a clearance for full duties. From November 2014 to June 2016, Mr Milford sent to both Coles
and Wesfarmers various medical certificates indicating fitness for light duties. Coles either
ignored this correspondence or replied by reiterating the need for full medical clearance.
[4] On 13 June 2016, Wesfarmers advised Mr Milford that it had been informed by Coles
that his employment had terminated. On 21 June 2016, Mr Milford wrote to Wesfarmers and
Coles stating that he had not received any correspondence concerning his employment status,
and disputing that his employment with Coles had ended. Coles did not reply to this message,
but on 1 July 2016 Wesfarmers did so, stating that if Mr Milford wished to discuss his
1 [2019] FWC 844
[2019] FWCFB 2277
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 2277
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employment status, he should contact Coles directly. Wesfarmers also explained that Mr
Milford was receiving his weekly compensation payments from Coles because Wesfarmers,
as the insurer, was not able to pay him directly, and that this was so even in cases where a
person is no longer employed but continues to be entitled to weekly compensation payments.
[5] For the next two years Mr Milford continued to send medicate certificates to Coles,
seeking a return to work on light duties. Throughout this period he received workers’
compensation payments. On 20 June 2018, Mr Milford wrote to Coles seeking a return to
work for rehabilitation arising from his workers’ compensation claim. In response, Coles
advised Mr Milford on 20 July 2018 that his employment had ceased in 2014. It is not
apparent why Coles did not tell Mr Milford at an earlier time that it considered his
employment to have ended.
[6] Mr Milford’s general protections dismissal application contends that his employment
was terminated by Coles on 20 July 2018, and that the reason for his dismissal was his request
of 20 June 2018 for a return to work for rehabilitation, which he characterises as the exercise
of a workplace right. He alleges that Coles contravened sections 340 and 343 of the FW Act
by occasioning adverse action for a proscribed reason. Coles maintains that Mr Milford’s
casual employment ended with his last casual shift in October 2014 and that the alleged
contraventions of the FW Act by Coles in 2018 could not have occurred because he was not
an employee of Coles at that time.
[7] In its Form 8A response to Mr Milford’s general protections application, Coles
objected to the application because it was not lodged within 21 days of the dismissal. The
Deputy President heard from the parties in relation to the objection on 11 December 2018.
The Decision
[8] In the Decision, the Deputy President considered the parties’ contentions as to when
Mr Milford’s employment ended by reference to the evidence concerning his engagement by
and work for Coles, and his correspondence with both Coles and Wesfarmers. She concluded
that in 2014 Mr Milford was a casual employee.2 She considered the decision of the Full
Bench in Hewitt v Topero Nominees Pty Ltd3 (Hewitt), and stated that it was not necessary for
her to make a finding concerning whether Mr Milford was dismissed, but that she was
required to determine the date by reference to which the 21 day period in s 366(1) operated.4
[9] The Deputy President determined that Mr Milford’s employment ended after his last
shift on 1 October 2014, and that “the relevant date for determining the date on which the 21
day application period commenced is 2 October 2014”.5 She therefore concluded that Mr
Milford’s application was filed 1404 days out of time. The Deputy President stated that a
troubling aspect of her conclusion was that on the evidence, Coles did not make Mr Milford
aware of the end of the employment relationship at that time. However, she said that Mr
Milford had been told by Wesfarmers in 2016 that his employment with Coles had ended, and
that Mr Milford had not engaged with this information.
2 At [47]
3 [2013] FWCFB 6321, 238 IR 42
4 At [57]
5 At [10], [70]
[2019] FWCFB 2277
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[10] The Deputy President did not determine the question of whether an extension of time
should be granted. Mr Milford had not yet made such an application and for this reason the
proceedings concerned only the date of dismissal. In her conclusion the Deputy President
stated that Mr Milford is able to make an application for an extension of time pursuant to s
366(2), and that, should he do so, she would make relevant directions.
Grounds of appeal and submissions
[11] Mr Milford raises 21 grounds of appeal that variously contend that the Decision was
affected by error. He submits that the Deputy President should have concluded that he was
dismissed on 20 July 2018, such that his s 365 application was lodged within the 21 day
period contemplated by s 366. Mr Milford contends that the Deputy President erred by
dismissing his application, and by not determining the date on which his dismissal took effect,
which he says should be the day he was informed of his dismissal by Coles. He contends that
the Deputy President made various errors of fact, or omitted relevant facts from her
consideration of the evidence, in respect of his dealings with Coles and Wesfarmers between
2014 and 2018. He says that the Deputy President incorrectly applied Full Bench authorities
concerning the dismissal of casual employees. And through several of his appeal grounds Mr
Milford advances a submission that the Deputy President erred in purporting to exercise
determinative powers that are not conferred on the Commission under s 366(1), contrary to
the Full Bench decision in Hewitt.
[12] In this regard, Mr Milford contends that the Deputy President’s conclusion that his
employment ended in October 2014 effectively determined that his general protections claim
has no merit. He says that the date on which he claimed to have been dismissed by Coles was
a foundational element of his application under s 365. By deciding that he had not been
dismissed in July 2018, and that the employment ended in 2014, he says that his application
became untenable: the company could not have dismissed him for a proscribed reason in 2018
if his employment had ended four years earlier. Indeed this is the company’s defence. Mr
Milford submits that in this connection his appeal raises issues of importance and general
application that attract the public interest, for there may be many cases where the date of
dismissal goes to the heart of the general protections claim, not just the procedural question in
s 366.
Consideration
[13] Mr Milford’s appeal was listed for hearing before us in respect of the question of
permission to appeal only.
[14] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied
that it is in the public interest to do so. The task of assessing whether the public interest test is
met is a discretionary one involving a broad value judgment.6 The public interest is not
satisfied simply by the identification of error or a preference for a different result.7 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench identified some of the
considerations that may enliven the public interest:
6 Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27]
[2019] FWCFB 2277
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‘... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...’8
[15] Aside from the special case in s 604(2), the grounds for granting permission to appeal
are not confined. Considerations traditionally adopted in granting leave and which would
therefore usually be treated as justifying the grant of permission to appeal include that the
decision is attended with sufficient doubt to warrant its reconsideration, and that substantial
injustice may result if leave is refused.9 It will rarely be appropriate to grant permission to
appeal unless an arguable case of appealable error is demonstrated. This is so because an
appeal cannot succeed in the absence of appealable error.10 However, the fact that the member
made an error is not necessarily a sufficient basis to grant permission to appeal.11
[16] We have decided not to grant permission to appeal, as we consider Mr Milford’s
appeal to be premature. The Deputy President has dealt only with the question of whether an
extension of time under s 366(2) is required. She has not considered any application to allow
a further period. If Mr Milford seeks and is granted an extension of time, his matter will
proceed to conference, and, in the event the matter does not settle, the Commission will issue
a certificate at the appropriate time. That will then conclude the Commission’s involvement
with Mr Milford’s application. Thereafter he would need to decide whether to take his claim
to a court. If on the other hand Mr Milford seeks an extension of time and the Deputy
President decides not to grant it, he could then file an appeal from that decision. Subject to
being granted permission to appeal, the substantive arguments that Mr Milford seeks to
advance before us now could be made then, together with any challenge to the decision not to
extend time.
[17] It is not desirable or in the interests of the efficient administration of justice for
appeals to be brought from interlocutory or interim decisions, or from substantive decisions
that form part of a broader controversy, the totality of which might rationally be the subject of
a single appeal.
[18] Further, there is no substantive or procedural prejudice to Mr Milford that arises from
our refusing permission to appeal. Mr Milford can make an application for an extension of
time without prejudice to what he maintains to be his pleaded case, namely that he was
dismissed in July 2018. We also note that any decision by the Deputy President not to grant
an extension of time would necessarily be founded upon her conclusion in the Decision that
an extension of time was needed. The 21 day period prescribed by the Commission’s rules for
instituting an appeal would run from the date of any decision not to extend time. The
significance of this is that Mr Milford would not need to seek an extension of time to appeal
the Decision, because it would in substance form part of the reasons for any future decision
not to grant an extension of time.
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
9 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803,116 FCR
481 at [26]
10 Wan v AIRC [2001] FCA 1803,116 FCR 481 at [30]
11 NSW Bar Association v Brett McAuliffe; Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[2019] FWCFB 2277
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[19] In these circumstances, we do not consider that the present appeal enlivens the public
interest, or that permission to appeal should otherwise be granted under s 604(2). In light of
this conclusion, it is not necessary for us to record our opinion on the grounds of appeal.
Nevertheless, we make two brief observations.
[20] First, several of the appeal grounds contended that the Deputy President erred in
dismissing the application on the basis that it was made out of time. This contention is
misconceived. As we have said, the Deputy President did not dismiss Mr Milford’s
application. She dealt only with the question of when Mr Milford was dismissed and whether
the application was out of time. Mr Milford’s application under s 365 remains before the
Deputy President. He may now seek an extension of time, and if he does so, the Deputy
President has indicated that she will make relevant directions.
[21] Secondly, we consider that the present matter raises a question as to whether the
determination of the date of dismissal correlatively involved an adverse determination of the
pleaded case under s 365, contrary to the principles in Hewitt. Of course, the Deputy President
has no power to make any determination of the substantive application under s 365, and her
conclusion as to the date of dismissal does not bind any court that might subsequently
consider Mr Milford’s general protections claim.
[22] However, the present appeal is premature and for the reasons given above we have
decided that it is not appropriate to grant permission, either in the public interest or otherwise.
Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr C Milford on his own behalf
Ms C Pase for Coles Supply Chain Pty Ltd
Hearing details:
2019.
Melbourne/Brisbane:
1 April.
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PR706586
OF THE FAIR WORK MISSION THE
