Dismissal prior to commencement of federal act

Cases

Dismissal prior to commencement of federal act

The dismissal of an employee that occurred on 21 February 1991 was unable to be heard by the Australian Industrial Relations Commission as the dismissal occurred prior to the enactment of the Workplace Relations Act 1996.

WantToReadMore

Get unlimited access to all of our content.

The dismissal of an employee that occurred on 21 February 1991 was unable to be heard by the Australian Industrial Relations Commission as the dismissal occurred prior to the enactment of the Workplace Relations Act 1996.

Background

The employee had been employed by Telecom Australia (now Telstra) as a Radio Lineman. He had been employed on a six-month probationary period (January 1990 to June 1990). A decision was made not to confirm the employee's appointment after reports regarding the employee's efficiency, diligence and conduct. The employee took the matter to a Review Tribunal (under relevant legislation at the time) which reappointed him on probation (Roderick v Telstra Corporation Ltd; Print R5897 [1997] 655 IRCommA).

A few months later, (November 1990) the employee was again dismissed because he had not met the criteria for confirmation of his appointment. Again the employee took the matter to a Review Tribunal but on this occasion, the employee's appointment was annulled.

The employee then approached the Review Tribunal to review the decision to annul his appointment. The Review Tribunal confirmed the decision of the Tribunal in November. This then prompted the employee to take his matter to the Federal Court of Australia for an order of review in respect of the Review Tribunal's findings. The Federal Court dismissed the employee's application. This was the first of a number of Federal Court matters over a period of seven years.

In 1998 the employee made an application to the South Australian Industrial Relations Commission for unfair dismissal but the SA Commission did not have the jurisdiction to hear his matter. The employee was advised by the SA Commission to apply to the Australian Industrial Relations Commission (AIRC).

AIRC decision

The employee's application to the AIRC alleged that his termination of employment was harsh, unjust or unreasonable. The employer raised a number of preliminary objections to the application for the Commission to deal with. These preliminary objections included:

  • that the employee was serving a period of probation at the time of the dismissal;
  • that the employee was employed and dismissed by the employer prior to the enactment of the Workplace Relations Act 1996; and
  • that the employee's application was seven years out of time.


The Commission found that the employee was not a probationary employee at the time of his dismissal and so was not excluded from making an application on that basis. However, in relation to the fact that the termination of employment occurred before the commencement of the Workplace Relations Act 1996, the Commission held that the current legislation had retrospective operation to 30 March 1994. The Commission found:

"[T]here is no licence to permit the Workplace Relations Act 1996 and amendments thereto to operate in respect of the termination of employment of [the employee] which occurred prior to 30 March 1994. The Commission has no jurisdiction to hear [the employee's] application."

As a result of the Commission's finding there was no need for the Commission to deal with the other issues raised. However, in relation to the employer's objection to the employee lodging the application seven years out of time, the Commission observed:

"that in this case the question of prejudice to the employer would have figured prominently. Acceptance of the application would expose the employer to sanctions in respect of action which was not subject to the sanctions when the action was taken and the employer had no knowledge of what was required of them when they took the actions".

The Commission dismissed the application.
Post details