Fair Work Australia has ruled it has no jurisdiction to hear an unfair dismissal claim until after the termination has taken place. It was the first time the question had been posed to the tribunal in a case brought on by Australian National University senior employment strategies advisor Bradley John Beasley. He claimed ANU unfairly dismissed him when it gave six months’ notice he would be terminated on December 1, 2010. Beasley’s lawyer claimed the “express language of the meaning of dismissal” in s386 of the Fair Work Act meant the employment was terminated on the employer’s initiative when notice was served on June 1, 2010, thus giving FWA jurisdiction. The university said the application was premature, as the words ‘a person has been dismissed’ indicated an event had taken place. The legislation did not use the words ‘is dismissed’ or ‘issued a notice of dismissal’, the university submitted.
Unique case turns on past tense meaning
Deputy President Peter Sams said the case was unique. “I am unaware of any decision, at single member or Full Bench level, which has specifically addressed the question I have been asked to determine in this case,” he said. “Nevertheless, it seems tolerably clear that the task of the Tribunal is to determine the meaning of the words in s365 [jurisdiction] and s366 [time for filing application] of the Act.”
He cited a number of cases relating to the principles of statutory construction and concluded interpreting ss365 and 366 was straightforward. “I cannot see how it is possible, given the principles of statutory construction earlier referred to and applying the ordinary English meaning of the words ‘has been dismissed’, to construe the words as having a prospective operation,” he said. “The words ‘has been’ are in the past tense and can only mean that an event has already occurred or taken place, not that it may, is likely to or will take place.” He said giving notice was not the same as an actual dismissal. “The notions of ‘notice’ and ‘dismissal’ are entirely different legal and industrial concepts,” he said. “The fact that a notice of termination can be withdrawn by mutual consent … fortifies the conclusion that the employment relationship remains on foot and ongoing until the date of the notice gives actual effect to the dismissal.”
DP Sams said while there was nothing stopping the parties from “initiating negotiations”, there was no legal obligation to engage in formal conciliation until the termination was effected on Dec 1, 2010. He dismissed the application.
(Beasley v Australian National University , FWA 7308 , 30/10/10)
Source: Thomson Reuters Workforce news, 1 October 2010. For the full daily issue, sign up for a FREE TWO-WEEK TRIAL of Workforce and other Thomson Reuters premium news services. Click here to sign up.
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