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Is it enough to get you in the door? Understanding the Implications of Hewitt v Topero Nominees PTY LTD: A Deep Dive into s.365 Proceedings of the Fair Work Act 2009

In the case of Hewitt v Topero Nominees Pty Ltd (trading as Michaels Camera Video Digital), a significant question was raised before the Fair Work Commission. The inquiry was about whether the Commission must confirm that an applicant has indeed been ‘dismissed’ from their employment (as stated under s.365 of the Fair Work Act 2009) before holding a conference to address the dispute. The outcome? The answer is a resounding “No”.

The Appeal Bench decreed that the Commission does not hold the authority to dismiss a s.365 application based on the premise that the applicant was not ‘dismissed’ from their employment. Therefore, the Commission is not required to assess and determine the dismissal as a prerequisite to conducting a conference.

Section 365, located within Subdivision A of Division 8 of Part 3-1 of the Fair Work Act 2009, provides a framework for individuals who claim to be dismissed in violation of one or more prohibitions within Part 3-1 (general protections). Under this section, these individuals may request the Commission to conduct a dispute resolution process.

In this particular case, the appellant, who had resigned from her role with the respondent on 29 October 2012, applied to the Commission under s.365 of the Act on 9 January 2013. She argued that the respondent’s conduct had compelled her to resign.

On 19 June 2013, the Commissioner initially determined that the appellant was not dismissed from her employment, thereby preventing her from pursuing her general protections application in the Federal Court or Federal Circuit Court.

The appeal presented the question – is it enough for a s.365 application to simply state that the applicant has been dismissed and the dismissal contravenes Part 3-1? Or is it mandatory for the Commission to ascertain whether the applicant was indeed dismissed from their employment before conducting a conference under s.368?

In their verdict, the Appeal Bench indicated that the mere filing of an application alleging dismissal in contravention of Part 3-1 is sufficient to grant the Commission jurisdiction to conduct a conference under s.368. They concluded that there is no requirement for the Commission to undergo a definitive process when handling a s.365 application.

This decision by the Appeal Bench is based on prior decisions in the cases of Hetherington-Gregory v Harrington Village Motel and Vice President Hatcher’s decision in Dr. Linda Munjoma v Salvation Army (NSW) Property Trustee for Social Work.

Consequently, the appeal was upheld, the Commissioner’s original decision was quashed, and the appellant’s s.365 application was sent back to Commissioner Johns for the purpose of conducting a conference under s.368.

This landmark case in Australian employment law underlines the crucial point that the filing of an application alleging dismissal in violation of Part 3-1 is sufficient to trigger a dispute resolution process under the Fair Work Act 2009.

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