1
Fair Work Act 2009
s.604—Appeal of decision
Tilers Trade Outlet (Vic) Pty Ltd
v
Julia Cochrane
(C2023/4839)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
SYDNEY, 29 SEPTEMBER 2023
Appeal against decision in transcript of Commissioner Matheson at Sydney on 26 July 2023
in matter number C2023/2548.
[1] Tilers Trade Outlet (Vic) Pty Ltd (appellant) has lodged an appeal, for which permission
to appeal is required, against a decision of Commissioner Matheson issued ex tempore on 26
July 2023. The Commissioner published her reasons for the decision on 18 August 2023.1 The
decision concerned a general protections application involving dismissal (the Application)
lodged by Ms Julia Cochrane (respondent) pursuant to s 365 of the Fair Work Act 2009 (Cth)
(FW Act). The appellant objected below to the Commission dealing with the application on the
basis that there was no jurisdiction to do so because the respondent had failed to plead material
facts in support of the assertions in the application that, in dismissing her, the respondent had
contravened ss 340, 343, 344 and 351 of the FW Act, and further contended that the application
could not be amended to remedy this.
[2] In her decision, the Commissioner dismissed the appellant’s objection and allowed the
application to proceed under s 368 of the FW Act. In its appeal, the appellant contended that
the decision was attended by appealable error, and that it would be in the public interest for
permission to appeal to be granted.
Background
[3] In the appeal, there was no challenge to the findings of fact made by the Commissioner.
The facts of the matter can therefore be summarised largely by reference to those findings.
[4] The respondent’s employment was terminated on 3 May 2023. On 5 May 2023, the
Respondent lodged a Form F8 — General protections application involving dismissal. On 8
May 2023, the respondent lodged an amended Form F8. In summarising the contents of the
original and amended Forms F8, the Commissioner found:
[49] I have considered the Form F8 filed by the Applicant. Both parties took me to this
signed document dated 8 May 2023. On page 1 of the Form F8 the text appears ‘This is an
[2023] FWCFB 170
DECISION
AUSTRALIA FairWork Commission
[2023] FWCFB 170
2
application for the Fair Work Commission (Commission) to deal with a general protections
dispute involving dismissal under Part 3-1 of the Fair Work Act 2009’. Statements by the
Applicant in that Form F8 suggest that she knew that she was ineligible to bring an unfair
dismissal claim because the minimum employment period had not been satisfied but this does
not mean that an application in an alternative jurisdiction cannot be made. Indeed, that the
Applicant knew she could not make an unfair dismissal claim suggests that a general protections
application is what was she intended.
[50] At section 3.1 of the Form F8 the Applicant sets out a timeline of events the Applicant
says occurred in the lead up to and around the time her dismissal. In the Form F8, question 3.2
asks ‘which sections of the Fair Work Act did the employer contravene when they took,
threatened or organised the above actions against you[?]’. In response to this question, the
Applicant has ticked a number of boxes on the form including those next to sections 340, 343,
344 and 351. The Applicant has also completed other parts of the Form F8.2
[5] On 19 May 2023, the appellant filed a Form F8A in response to the Form F8 raising its
jurisdictional objection to the application:
The Applicant is required to plead the material facts in support of the assertion that the
Respondent has contravened sections 340, 343, 344 and 351 of the Act (as stated in Azad v
Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro [2022] FWCFB 66).
FWC[’s] power to deal with a dispute under section 368 is only enlivened if an application is
properly made under section 365 of the Act (as stated in Coles Supply Chain v Milford [2020]
FCAFC 152)[.]
The Applicant has not pleaded any material facts and the application should be dismissed under
s 587 of the Act.
[6] On 29 May 2023, the Commission wrote to the parties informing them that the
application was to proceed to a conference before a Commission staff conciliator. That
conciliation conference was not able to proceed as the respondent pressed that its objection
needed to be determined first.3
[7] On 15 June 2023, the respondent filed an additional annexure which it sought to be
added to the amended Form F8. The annexure relevantly stated:
1. The Applicant’s claim moving forward will be confined to an alleged breach of section
340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (the FWA).
2. Prior to 2 May 2023, all signs indicated that the Applicant’s employment was continuing.
Among other things, the Applicant had recently passed her probation period and had been
issued a new employment contract with a significant salary increase and additional hours
of work.
3. On 2 May 2023 the Applicant contacted Kathleen Guardiano (Guardiano) by telephone
and made a complaint in relation to her employment regarding the aggressive and
belittling tone and manner of Guardiano’s email correspondence from earlier that day (the
Complaint).
4. Immediately after making the Complaint the Applicant was directed to attend a meeting
the following morning.
[2023] FWCFB 170
3
5. On 3 May 2023 the Applicant attended the scheduled meeting and was dismissed
effectively immediately (the Dismissal). No detailed reasons were provided for the
Dismissal.
6. In making the Complaint, the Applicant was exercising a workplace right to do so under
section 341(1)(c)(ii) of the FWA. This exercise was underpinned by, among other things,
section 21 of the Occupational Health and Safety Act 2004 (Vic).
7. In effecting the Dismissal, the Respondent took adverse action against the Applicant
within the meaning of section 342 of the FWA.
8. In breach of section 340(1)(a)(ii) of the FWA, the Respondent took this adverse action
against the Applicant because of her exercise of her workplace rights. This is evidenced
by, among other things, the temporal proximity between the Complaint and the Dismissal.
9. The Applicant relies on the reverse onus of proof in section 361 of the FWA. In the above
circumstances, we do not consider that the Respondent has a reasonable prospect of
discharging that onus.
Legislative framework
[8] Sections 365, 366 and 368 of the FW Act are contained in Subdiv A of Div 8 of Pt 3-1.
They provide:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests
of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the
dispute.
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
[2023] FWCFB 170
4
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other
than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making
recommendation or expressing an opinion (see subsection 595(2)). One of the
recommendations that the FWC might make is that an application be made under Part 3-
2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by
arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by
arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration
under section 369, or a general protections court application, in relation to the
dispute would not have a reasonable prospect of success, the FWC must advise the
parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of
Part 4-1 for orders in relation to a contravention of this Part.
[9] The Commission’s role in relation to applications under s 365 of the FW Act is to deal
with such applications by way of conciliation or mediation under s 368 of the FW Act. If
satisfied that all reasonable attempts to resolve a dispute under s 365 have been or are likely to
be unsuccessful, the Commission must issue a certificate under s 368(3). Section 370 of the FW
Act imposes a substantial restriction on applicants by preventing a general protections court
application being made unless the Commission has issued a certificate under s 368(3)(a) in
relation to the dispute.4
Appeal principles
[10] Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are
satisfied that it is in the public interest to do so. We may otherwise grant permission on
discretionary grounds.
[11] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.5 In GlaxoSmithKline Australia Pty Ltd v Makin6 a Full Bench
of the Commission identified considerations that might attract the public interest:
[2023] FWCFB 170
5
… the public interest might be attracted where a matter raises issues 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…
[12] 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.7
The reasons for the decision under appeal
[13] In the Commissioner’s reasons for her decision, after summarising the submissions of
the parties, the Commissioner confirmed that the key issue for determination was whether in,
accordance with s 365(b) of the FW Act, Ms Cochrane had alleged that she was dismissed in
contravention of Part 3-1 of the FW Act.8
[14] The Commissioner noted the appellant’s submission that the Form F8 provided no basis
for a conclusion that the adverse action took place for a prohibited reason, and that Ms Cochrane
specifically contended that there was no prohibited reason, stating in response to question 3.3
that ‘I believe I have been discriminated against for no good reason… I believe that none of
this makes any sense and, could there be an ulterior motive for letting me go?’
[15] The Commissioner found that the appellant’s submission ‘turns to merits rather than
jurisdiction’,9 noting that question 3.3. of the Form F8 invited further explanation about the
contraventions alleged, and observed that at question 3.3 the Ms Cochrane referred, among
other things, to:
[52]…[her] belief she has been discriminated against and that there is no “good” reason for this
and posits that there may be an “ulterior motive” for the dismissal. If this matter ultimately ends
up before a court of competent jurisdiction or the Commission on the basis of agreement,
questions about the further assertions and their relevance to the allegations made would need to
be dealt with at that juncture.
[16] After making observations regarding the common occurrence of applications containing
irrelevant material, especially in the case of self-represented parties, the Commissioner found
as follows:
[54] However, question 3.2 of the Form F8 expressly asked “which sections of the Fair Work
Act did the employer contravene when they took, threatened or organised the above actions
against you”. The Applicant has answered this question and in doing so, I consider that she has,
in effect alleged that she was dismissed in contravention of Part 3.1. There is no further
stipulation in s.365 that the allegation needs to be made or particularised in a certain way.
[55] The fact of the Applicant’s dismissal and that the applicant alleges she was dismissed
in contravention of Part 3-1 means that the requirements in s.365 have been met and pursuant
to s.368 of the Act, that means that the Commission must deal with the dispute other than by
arbitration. Having made my determination, I dismissed the Respondent’s objection and
proceeded to deal with the application as required by s 368.10
[2023] FWCFB 170
6
Grounds of appeal and appeal submissions
[17] By an amended notice of appeal, the appellant advances the following five grounds of
appeal:
1. The Commissioner erred in finding that the Respondent had alleged that she was
dismissed in contravention of Part 3.1 of the Act.
2. The Commissioner erred in finding that the Respondent had satisfied the requirements of
section 365 of the Act by ticking the box(es) that appear in question 3.2 of Form 8
(General Protections application involving dismissal) in circumstances where the
application as a whole made clear that the application did not allege a contravention of
Part 3-1 but did allege that the dismissal was unfair.
2A. The Commissioner erred in finding at [52] that 3.3 of the application only serves to invite
a further explanation about the contravention alleged. 3.3 does more than invite a further
explanation. It requires a primary explanation of how the alleged actions have
contravened the sections identified. Such explanation is necessary for the Appellant to
understand the Respondent’s case, and for the Commission to properly conciliate the
matter and to determine whether it has jurisdiction . The Commission should have looked
at the application as a whole to determine whether or not, it alleged a contravention of the
part.
3. In doing so, the Commissioner erred in finding the FWC had jurisdiction under section
368 of the Act to deal with the matter, including convening a conference.
4. In doing so, the Commissioner erred in issuing the, or indicating that the FWC will issue
a[] certificate under section 368 of the Act.
[18] The appellant submits that Ms Cochrane’s application, read as a whole, was clearly
referring to an unfair dismissal. In this respect, the appellant pointed to the contentions in her
application that:
• she ‘would like the company and the director to be held liable for terminating my
employment, without just cause’;
• ‘there is no reason for this [dismissal], and no termination letter’;
• ‘I believe that Kate Guardiano was protecting herself… assuming she believed an
unfair dismissal action could ensure (however as I have not been employed the
required 12 months I know that claiming this was not allowable) …I have not been
issued any warnings’;
• ‘I was terminat[ed] without any suitable explanation’; and
• she was an ‘UNJUSTLY TERMINATED EMPLOYEE’ [sic].
[19] The appellant submits that the essence of the general protections provisions is that they
protect persons from adverse action taken for particular reasons but, in this case, it was clear
[2023] FWCFB 170
7
that Ms Cochrane did not allege that the action was taken for a particular reason and indeed
alleged that there was no reason for the adverse action. To make the situation even clearer, it
was submitted, she alleges that the termination was ‘unfair’, which was entirely contrary to the
statutory scheme. In assessing whether the criterion for a valid application in s 365(b) was met,
the Commission should have looked at the application as a whole to determine whether or not
it alleged a contravention of the relevant Part of the FW Act.
[20] The appellant submits that in this case there was a clear public interest that mandated
the grant of permission to appeal under s 604(2). Considerable resources are spent by
respondents in answering claims that in reality are unfair dismissal claims dressed up as general
protections claims, made by applicants who seek relief for dismissals that they consider unfair
but are unable to litigate because they have not passed the qualifying period of employment.
Further, considerable resources of the Fair Work Commission are also expended in dealing with
these matters as are the resources of the Federal Circuit and Family Court and the Federal Court
at a later stage. The appellant submits that, given the generally ‘no cost’ regime created by s 570
of the FW Act, many respondents will settle such cases even though they are entirely meritless.
The decision, it was submitted, was in error for the reasons stated, the decision should be
quashed, and Ms Cochrane’s application dismissed.
Consideration
[21] Notwithstanding that there are five grounds of appeal, the notice of appeal in truth only
raises one issue: did the respondent satisfy the requirement for a competent application in
s 365(b) of the FW Act?
[22] In Coles Supply Chain v Milford, the Full Court of the Federal Court determined that
the Commission’s powers to deal with a dismissal dispute under s 368 are only enlivened if an
application is properly made under s 365.11 The Full Court said:
The second observation that may be made is that s 365 contains two criteria conditioning a
person’s entitlement to make an application. The first criterion is expressed in objective terms:
the person has been dismissed. The second criterion is also expressed in objective terms, albeit
by reference to the fact that an allegation has been made that “the dismissal” was in
contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b),
but not in the criterion in s 365(1)(a). In its ordinary meaning, the criterion in s 365(1)(a) will
be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an
applicant asserts that he or she has been dismissed. The words “the dismissal” to which subs (b)
refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in
fact. 12
[emphasis in original]
[23] All that is required for satisfaction of the criterion in s 365(b) of the FW Act is that there
be an allegation the relevant person was dismissed in contravention of Pt 3–1 of the FW Act.
On its ordinary meaning, a person alleges something if they assert it without proof.13 The
relevant jurisdictional fact required by s 365(b) is that the allegation of a contravention of Pt 3-
1 has been made. In satisfying itself that it has a competent application before it, the
Commission is not required to undertake an assessment as to whether there have been facts
pleaded which might reasonably support the allegation. Nor does it need to consider whether
the allegation has any merit or is reasonably arguable, noting that s 587(2) of the FW Act
[2023] FWCFB 170
8
prohibits the Commission from dismissing an application under s 365 on the ground that it is
frivolous or vexatious or has no reasonable prospects of success.
[24] We consider, as did the Commissioner at first instance,14 that the criterion for a valid
application in s 365(b) was clearly satisfied by Ms Cochrane. Question 3.1 of the standard Form
F8 asks: ‘Describe the actions of the employer, including any reasons given for your dismissal,
that led you to make this application’. In response to this, Ms Cochrane described in both her
original and amended application the facts and circumstances pertaining to her dismissal,
including that (in substance) no reason, or at least no reason that she understood, was given for
her dismissal, nor was she given a termination letter.
[25] Question 3.2 of the Form F8 next asks: ‘Which section(s) of the Fair Work Act 2009
did the employer contravene when they took, threatened or organised the above actions against
you?’ Importantly, immediately below this, the form states (in the form of an information note):
‘A general protections application should only be made if your employer took adverse action
against you because you have the protections described in or more sections of the Fair Work
Act listed below’. Beneath this are boxes referring to each of the relevant provisions of Divs 3,
4, 5 and 6 of Pt 3-1 of the FW Act. Ms Cochrane put crosses in the boxes beside the references
to ss 340, 343, 344 and 351 in both her original and amended applications. That cannot be
understood as anything other than an allegation that her dismissal by the appellant contravened
Pt 3-1.
[26] That Ms Cochrane’s application contained contentions which, arguably, may seem to
be more directed to the proposition that her dismissal was in some general sense ‘unfair’ does
not gainsay the proposition that she has alleged that her dismissal contravened Pt 3-1. It is not
the task of the Commission to assign a general characterisation to an application made pursuant
to s 365 by ‘reading it as a whole’, as the appellant suggests; as already stated, the Commission’s
task is simply to ascertain whether an allegation that the relevant dismissal contravened Pt 3-1
has been made in order to satisfy itself that the criterion for a valid application in s 365(b) has
been met.
[27] Finally, we note that this is not a case where there is any issue about the applicant having
filed the wrong type of application by mistake. Ms Cochrane made a clear allegation of
contravention of Pt 3-1 in her original application and repeated it in her amended application.
If there remained any doubt, a clearly articulated allegation of a contravention of s 340(1)(a)(ii)
of the FW Act was made by lawyers acting on her behalf in the proposed annexure to the
amended application filed on 15 June 2023. It is clear therefore that the appellant has at all
relevant times intended to proceed with a general protections application involving dismissal.
[28] For the above reasons, we are not satisfied that the appellant has advanced a reasonably
arguable case that the Commissioner’s decision was attended by appealable error. The
Commissioner reached her decision using an orthodox approach to the determination of the
application and was correct in her jurisdictional determination that an application had been
properly made under s 365 of the FW Act. We are not satisfied that it would be in the public
interest to grant permission to appeal, and nor are we satisfied that we should otherwise exercise
our discretion to grant permission. Permission to appeal is refused, and a certificate pursuant to
s 368(3)(a) of the FW Act will now be issued.
[2023] FWCFB 170
9
Order
[29] We order that permission to appeal is refused.
Costs
[30] In her written submissions in the appeal, the respondent sought an order for costs
pursuant to s 611 of the FW Act. The following directions are made:
(1) The respondent shall file an itemised claim for costs using Form F6, and
submissions in support of that claim, by 5:00 pm (AEDT) on Friday, 13 October
2023.
(2) The appellant shall file submissions in response to the respondent’s costs
submissions by 5:00 pm (AEDT) on Friday, 27 October 2023.
PRESIDENT
Appearances:
I Latham, counsel, with L Burke, solicitor, for Tilers Trade Outlet (Vic) Pty Ltd.
M Kriewaldt, solicitor, for Julia Cochrane.
Hearing details:
2023.
Sydney, with video link to Melbourne using Microsoft Teams:
21 September.
Printed by authority of the Commonwealth Government Printer
PR766493
1 [2023] FWC 2071.
2 Ibid at [49]-[50].
3 Ibid at [3].
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2071.pdf
[2023] FWCFB 170
10
4 Ward v St Catherine’s School [2016] FCA 790 at [3].
5 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69]; Coal &
Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
6 [2010] FWAFB 5343, 197 IR 266 at [27].
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
8 [2023] FWC 2071 at [42].
9 Ibid at [52].
10 Ibid at [54]-[55].
11[2020] FCAFC 152, 279 FCR 591, 300 IR 146 at [63].
12 Ibid at [54].
13 Macquarie Online Dictionary.
14 [2023] FWC 2071 at [54].
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2071.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2071.pdf
