10 Sep General Protections: Dismissal and the Fair Work Commission
The decision of the Fair Work Commission (FWC) Full Bench of Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101 (Lipa Pharmaceuticals Decision) highlights an important change in the way the FWC deals with general protections applications involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (Act).
The Lipa Pharmaceuticals Decision has already impacted how general protections dismissal applications are dealt with in circumstances where the applicant’s dismissal is disputed by the respondent(s) to the application.
Background
The circumstances of Dr Jarouche’s employment ending with Lipa Pharmaceuticals Ltd (Lipa) and how Dr Jarouche’s general protections dismissal application was dealt with by the FWC were important in the Lipa Pharmaceuticals Decision.
By way of a brief summary:
1. On around 24 May 2021, Dr Jarouche was employed as a Chief of Quality of Lipa.
2. During 2022, Lipa’s Chief Executive Officer, Mr Tanna, developed concerns about parts of Dr Jarouche’s performance, which were discussed with Dr Jarouche.
3. In September 2022, Dr Jarouche confirmed to Mr Tanna she would require a period of leave for planned surgery.
4. On 29 September 2022, Mr Tanna and Dr Jarouche had a meeting within which, among other things, Dr Jarouche agreed to resign from her employment with Lipa. It was subsequently agreed Dr Jarouche’s employment would end effective 5 October 2022.
5. On 21 October 2022, Dr Jarouche filed a general protections dismissal application with the FWC.
6. Despite raising a jurisdictional objection about whether Dr Jarouche was dismissed in its Form F8A, Lipa participated in a conciliation conference conducted by the FWC on 13 December 2022.
7. The conciliation conference did not result in a settlement of the matter.
8. Lipa pressed for its jurisdictional objection to be determined by the FWC prior to the issue of any certificate by the FWC under section 368(3)(a) of the Act.
Appeal to the FWC Full Bench and General Protections
The Full Bench summarised that Lipa’s appeal in the Lipa Pharmaceuticals Decision raised four appeal grounds that all involved the contention the Deputy President in Mariam Jarouche v Lipa Pharmaceuticals Ltd [2023] FWC 493 made an error in finding Dr Jarouche was “dismissed” within the meaning of the s 386(1)(b) of the FW Act.
While the Full Bench determined that Dr Jarouche’s resignation was “forced” within the meaning of s 386(1)(b) of the Act and Dr Jarouche had been “dismissed” within the meaning of section 386(1) of the Act, there were significant comments made by the Full Bench on general protections applications more broadly and how the FWC deals with these applications.
The Full Bench provided:
1. A valid General Protections Dismissal Application under section 365 of the Act requires that the dismissal has actually occurred as a matter of jurisdictional fact and it is not sufficient that the applicant has simply alleged that they were dismissed
2. If there is a contest as to whether the alleged dismissal subject of the application has occurred, this is an question that must be resolved before the powers conferred by section 368 of the Act can be exercised at all.
3. The conciliation conference conducted by the FWC for Dr Jarouche’s application should not have occurred as Lipa raised a jurisdictional objection as to whether Dr Jarouche was dismissed. This should have been determined prior to the FWC dealing with the dispute, including by conducting the conciliation conference.
What Does This Mean For General Protections Applications?
The FWC previously conducted a conciliation conference for general protections dismissal applications, even in circumstances where there was a jurisdictional objection raised about dismissal by the respondents.
From 1 June 2023:
1. The FWC changed its case management practices for general protections dismissal applications.
2. Where the respondent to an application denies that it dismissed the applicant and objects to the application on this basis, the FWC is required to determine whether or not there was a dismissal.
3. This would likely involve a hearing and determination by the FWC on whether there was a dismissal before any conciliation/conference takes place.
The new case management practices of the FWC ultimately add another consideration for potential applicants when they are determining if they want to make a general protections application.
See more articles on general protections at our page here.
Written by Angus Macpherson.
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