When an Ex Still Has Rights to Dispute You

Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [2016] FWC 5089 (3 August 2016)

An employer has had its jurisdictional argument thrown out by the Fair Work Commission after it unsuccessfully argued that a former employee could not invoke an enterprise agreement’s dispute settling procedure. Given that the employment had ended, there was no employer-employee relationship at the time the dispute was notified to the FWC, so there was no power to entertain the claim according to the employer.

The employee had been selected, along with 150 others, for redundancy. The FWC noted that the employee had engaged with company management before his employment ended, challenging the decision to include him on the ‘to go’ list. The FWC analysed the disputes procedure in the enterprise agreement, specifically as it related to redundancies, and came to the conclusion that the employee had invoked the process when he challenged the decision to make him redundant.

The FWC drew a distinction between the process being afoot and the actual filing of the paperwork in the FWC to seek assistance. The crux of the matter was that for a dispute to exist does not depend on the filing of a claim in the FWC – the dispute exists if the parties have an unresolved difference. The evidence revealed that the employee was dissatisfied with his selection for redundancy and that the employer was steadfast in its inclusion of the employee for redundancy.

It appears also that the short time frame between when the employee had exhausted talks with the employer and his termination date played a role. The employee’s last meeting with the employer was just six days prior to the end date of employment and his dispute notification was received by the FWC 12 days after that.

This case shows that the FWC is prepared to entertain a grievance process even though the employee is no longer employed. This is an alternative way for an employee to grieve their termination of employment, and could be used in some circumstances by employees in future as a way to circumvent the unfair dismissal regime, which has some barriers to access.