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[2020] FCA 453
defendant. 1. The name of the respondent amended to 'Tin (Staffing Services) Pty Ltd'. 2. The originating application filed on 17 December 2019 dismissed. 3. The respondent's interlocutory application filed...
Gao filed a general protections court application in the Federal Court alleging he was dismissed in contravention of the Fair Work Act. He had earlier applied to the Fair Work Commission outside the statutory time limit and the Commission refused an extension, so it did not issue the certificate required by s 368(3)(a). The Federal Court held it had no jurisdiction to hear the general protections claim because the required Commission certificate was not produced. The respondent's attempt to strike out the applicant's document under the Court's strike-out rule failed because an originating application is not a 'pleading'. The Court dismissed the originating application for lack of jurisdiction and made no order as to costs.
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1,833 words · generated 11/07/2026
Zhan Gao (the applicant), an unrepresented litigant, alleged he had been dismissed by his former employer, Tin (Staffing Services) Pty Ltd, in contravention of the general protections in Part 3‑1 of the Fair Work Act 2009 (Cth) (the FW Act). The factual contest was whether Gao had resigned (respondent's position) on 8 March 2019 or had been dismissed on 9 March 2019 after requesting reduced hours (applicant's position) [11].
No linked legislation citations have been extracted yet.
Procedurally, Gao first filed an unfair dismissal application to the Fair Work Commission (FWC) on 25 March 2019 under s 394. He later discontinued that unfair dismissal application and lodged a "general protections application involving dismissal" with the Commission on 17 April 2019 under s 365. That general protections application was filed outside the 21‑day window in s 366, so Gao needed an extension. The Commission refused to allow a further period; consequently it did not and could not issue the s 368(3)(a) certificate stating that all reasonable attempts to resolve the dispute other than by arbitration had been, or were likely to be, unsuccessful. Gao sought permission to appeal that refusal to the Full Bench and was refused permission [12]–[14].
Despite the absence of a s 368(3)(a) certificate, Gao filed an originating application in the Federal Court on 17 December 2019 alleging a general protections dismissal claim (Form 79) and seeking assorted relief including unpaid entitlements and compensation [15]. The respondent then filed an interlocutory application in the Federal Court seeking to strike out the applicant's "pleading" under r 16.21 of the Federal Court Rules, contending the originating application was ambiguous, failed to disclose a cause of action and was not accompanied by the FWC certificate required by r 34.03(3) [16].
At the first case management hearing, Steward J raised whether the applicant had obtained the Commission's certificate, and the applicant conceded in writing that no certificate had been issued because the Commission refused an extension [17]–[18]. The Court dismissed the respondent's strike‑out application as misconceived because the applicant had filed an originating application, which is not a 'pleading' capable of being struck out under r 16.21 [19]–[20]. However the Court held it had no jurisdiction to hear the general protections claim in the absence of the Commission's s 368(3)(a) certificate and dismissed the originating application for want of jurisdiction, making no order as to costs [21]–[25].
The decision rests on a strict statutory jurisdictional precondition. Section 370(a)(i) of the FW Act provides that a person who is entitled to apply under s 365 (to have the FWC deal with a dismissal dispute) must not make a general protections court application unless the FWC has issued the certificate required by s 368(3)(a). Section 368(3)(a) requires the Commission to issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. Rule 34.03(3) of the Federal Court Rules mirrors that statutory requirement, providing that a Federal Court originating application in relation to a dismissal contravening a general protection must be accompanied by the Commission's certificate [3]–[9], [9].
Steward J accepted the textual and policy basis for the certificate requirement. He followed the reasoning in Ward v St Catherine's School [2016] FCA 790 to the effect that the certificate is the Commission's evaluation that non‑court dispute resolution avenues have been or are likely to be unsuccessful, and that the legislature intended dismissal disputes to be dealt with by the Commission unless those processes are or are likely to be unsuccessful. That statutory condition is not satisfied merely because the dispute was made to the Commission or was pending there; the certificate is the Commission's independent assessment and is a precondition to litigating the dispute in court [21]. Consequently, because Gao did not obtain the certificate (the Commission had refused to allow a further period under s 366 and thus did not deal with s 368(3)(a)), the Court had no jurisdiction to hear his general protections claim and could not waive that requirement [14], [21]–[22].
Separately, the respondent's strike‑out application under r 16.21 failed because the Rules' Dictionary expressly excludes an originating application from the definition of 'pleading', so the statutory strike‑out mechanism did not apply to the document the applicant had filed [19]–[20].
On costs, Steward J noted the Court's residual discretion under s 570(2) of the FW Act and, considering the applicant's unrepresented status and the litigation history, exercised that discretion against awarding costs to the respondent despite the applicant losing the substantive proceeding [24]–[25].
Before this judgment there was established authority that the FWC's certificate requirement in s 370(a)(i) and s 368(3)(a) is a jurisdictional precondition to litigating general protections dismissal disputes in court. Steward J cited Chen v Birbilis [2016] FCA 661 and followed Ward v St Catherine's School [2016] FCA 790 for the policy and operation of the certificate requirement [21]. The present judgment reinforces the established rule: the Federal Court cannot entertain a general protections court application in the absence of the s 368(3)(a) certificate, and the Court cannot dispense with the certificate by judicial fiat or sympathy for an unrepresented litigant [22].
In relation to procedure, the judgment clarifies the interplay between the Federal Court Rules and the FW Act, r 34.03(3) requires an originating application to be accompanied by the FWC certificate, and the Rules' definition of 'pleading' excludes an originating application, so strike‑out under r 16.21 is not the correct vehicle to challenge an originating application on that basis; such a challenge must instead look to jurisdictional objections and r 34.03 compliance [19]–[20], [9].
After this decision, practitioners should expect Federal Courts to continue treating the Commission's certificate as a hard jurisdictional gate. Failure to obtain the certificate, whether by missing statutory deadlines or failing to secure an extension from the Commission, will commonly be fatal to bringing a general protections dismissal claim in court.
"It follows that there is nothing for the Court to strike out as the applicant's originating application is clearly not a 'pleading' upon which r. 16.21 of the Rules could operate." [20]
"In simple terms, the Court does not have jurisdiction to hear the applicant's purported general protections court application." [21]
"The terms of s. 370(a)(i) are clear. The absence of the certificate cannot be overcome by the applicant's conviction that he has been treated poorly by his erstwhile employer. The Court has no discretion in waiving the requirement for the certificate." [22]
"For the foregoing reasons, I dismiss: (a) the applicant's application filed on 17 December 2019 on the basis that the Court has no jurisdiction to hear and determine it; and (b) the respondent's interlocutory application filed on 26 March 2020, with no order as to costs." [25]
This precedent is engaged where:
In these circumstances district and federal practitioners should expect a jurisdictional objection to succeed: the Federal Court will dismiss the originating application for want of jurisdiction unless and until the requisite certificate is procured.
This decision aligns with existing Federal Court authority emphasising the certificate requirement as a jurisdictional precondition (the judgment cites Chen and follows Ward) [21]. It confirms previously expressed principles rather than creating new law. Practitioners should treat Steward J's reasoning as reinforcing the existing line that the Court cannot deviate from the statutory gatekeeping role assigned to the Commission in s 368(3)(a) and s 370. Subsequent decisions would likely cite Gao v Tin to support jurisdictional objections where claimants file court proceedings without a Commission certificate or where claimants have failed to secure extensions from the Commission under s 366.
Practical takeaway: before filing a general protections court application alleging a dismissal, ensure that the Fair Work Commission has issued the s 368(3)(a) certificate or that the court application includes an interim injunction that invokes s 370(b). If an extension of time before the Commission is required, secure it or be prepared for an absolute jurisdictional impediment in Federal Court litigation [12]–[15], [21]–[23].
The Applicant's Originating Application 15 On 17 December 2019, the applicant filed an originating application in this Court alleging dismissal in contravention of a general protection under the FW Act (Form 79). That application was not accompanied by any other document. In the application, the applicant set out the claims which were before the Commission in respect of his alleged dismissal. Relevantly, the applicant stated that he "relies on s365 of the Fair Work Act 2009". He thus purported to make a "general protections court application", to use the language of s. 370. And he sought relief in the form of: unpaid wages, annual leave, loading, personal leave entitlements and superannuation; correction to his payslips; compensation from the time of the alleged unfair dismissal to the time he secured part-time employment; and an apology. 16 In response to the applicant's originating application, the respondent filed an interlocutory application seeking "[t]hat the Applicant's pleading be struck out, pursuant to Rule 16.21 of the Federal Court Rules 2011" and an order as to costs. This application was accompanied by an affidavit sworn by Mr Guy Israeli, solicitor for the respondent, on 23 March 2020. In broad terms, the respondent complained that: (i) the applicant had not clearly exposed the relevant cause of action; and (ii) the applicant's originating application was not accompanied by a certificate issued by the Commission as required by r. 34.03 of the Rules.
First Case Management Hearing 17 At the first case management hearing before me on 26 March 2020, the applicant, with leave, was permitted to make submissions by telephone. I drew to his attention that his application needed to be accompanied by a certificate issued under s. 368(3)(a) of the FW Act in order to enliven the Court's jurisdiction. I asked the applicant whether he had obtained such a certificate. Due to difficulties with the telephone connection, however, the applicant's response was not discernible. I subsequently directed the applicant to send to my Chambers a written response addressing my question and the matters raised by the respondent's interlocutory application. 18 In his written submissions, so far as is relevant, the applicant: (a) re-iterated that he relies upon s. 365 of the FW Act and characterised the genesis of his matter as the "general protections dismissal application" lodged with the Commission; (b) very properly conceded that no certificate was issued to him because the Commission refused his request for an extension of time to file the general protections dismissal application; (c) contended that the respondent's interlocutory application was an abuse of process. In that respect, he alleged that the respondent had engaged in deceptive actions and had presented documents that were "false" or "illegal"; and (d) directed the Court to "Note 2" under s. 370 of the FW Act and the "Note" under r. 34.03(3) of the Rules.
The respondent's interlocutory application 19 The respondent's interlocutory application may be dealt with swiftly as it is, with respect, misconceived on its face. The applicant has filed no "pleading". He has only filed an originating application. The term "pleading" is defined in Sch. 1 (Dictionary) to the Rules as follows: pleading means: (a) a statement of claim; or (aa) an alternative accompanying document referred to in rule 8.05; or (b) a statement of cross claim; or (c) a defence; or (d) a reply; or (e) any pleading after a reply; but does not include: (f) an originating application; or (g) an interlocutory application (h) a notice of any kind; or (i) an affidavit. (Emphasis added.) 20 It follows that there is nothing for the Court to strike out as the applicant's originating application is clearly not a "pleading" upon which r. 16.21 of the Rules could operate. The respondent's interlocutory application is therefore dismissed. That outcome, however, is of limited assistance to the applicant as he confronts a more fundamental obstacle.
The Court's jurisdiction 21 In simple terms, the Court does not have jurisdiction to hear the applicant's purported general protections court application. In other words, there is a "jurisdictional bar" to the Court adjudicating on whether he was dismissed in contravention of Pt 3-1 of the FW Act. That is because the applicant has not been issued a certificate pursuant to s. 368(3)(a) of the FW Act. It follows that pursuant to s. 370(a)(i) of the FW Act, an essential condition to the Court's jurisdiction has not been satisfied: see Chen v. Birbilis [2016] FCA 661 at [18] per North J. The operation and rationale of s. 370(a)(i) was described by Pagone J. in Ward v. St Catherine's School [2016] FCA 790 as follows (at [6]): It is significant that the certificate required by s 370(a)(i) to trigger a person's entitlement to make an application to the Court, is a certificate in which the Commission expresses its satisfaction about a state of affairs concerning the ability of the dispute to be resolved by means other than arbitration. The entitlement under s 370 of the Act to make a general protections court application, in other words, is made to depend upon the Commission's evaluation of the facts and circumstances bearing upon the prospects of the parties resolving their dispute about dismissal by means other than arbitration and proceedings in Court (unless their application included an application for an interim injunction). The statutory condition for a certificate from the Commission reveals a clear legislative policy that such dismissal disputes are to be dealt with by the Commission, and by dispute resolution procedures other than by arbitral and judicial determination, unless those procedures have been or are likely to be unsuccessful. The legislative policy is that Court processes to resolve such dismissal disputes are then only to be engaged when the Commission, as an independent statutory authority, is itself satisfied that those other means for resolution of the dismissal disputes are, or are likely to be, unsuccessful. It is not sufficient to enliven a litigant's entitlement to bring a dispute to the Court for the dispute about dismissal to have been referred to the Commission unsuccessfully. Nor is it sufficient to enliven the entitlement to make a general protections court application in relation to a dismissal dispute that the dispute had been made to, and was pending in, the Commission. What is required to enliven the entitlement to make such an application to the Court is not the mere formality of a certificate by the Commission but, rather, the certification by the Commission of it being satisfied that the dismissal dispute is not able to be resolved by the alternative process specifically provided for by the legislature. (Emphasis added.) I respectfully agree with his Honour's observations. 22 The terms of s. 370(a)(i) are clear. The absence of the certificate cannot be overcome by the applicant's conviction that he has been treated poorly by his erstwhile employer. The Court has no discretion in waiving the requirement for the certificate. The applicant's reliance, therefore, on "Note 2" under s. 370 is, with respect, misguided as that note pertains to the Court's discretion with respect to the time in which a general protections court application can be made. 23 For completeness, I note that it was not otherwise contended by the applicant that s. 370(b) of the FW Act applies. To elaborate, the applicant's general protections court application does not include an application for an interim injunction (e.g. for reinstatement) so as to eliminate the need for a certificate: see Knight v. Visionstream Australia Pty Ltd [2017] FCA 1513 at [32] per O'Callaghan J.
Costs 24 To the extent the respondent seeks costs, I note that s. 570(2) of the FW Act confers a residual discretion on the Court, even if it is satisfied, for example, that the applicant instituted the proceeding without reasonable cause: Milardovic v. Vemco Services Pty Ltd (No 2) (2016) 242 F.C.R. 492 at 502 [47] per Mortimer J. In the circumstances of this case, including the outcome of the respondent's interlocutory application and the position of the applicant, I consider it appropriate to exercise that residual discretion in favour of the applicant. There will be no order as to costs.
Conclusion 25 For the foregoing reasons, I dismiss: (a) the applicant's application filed on 17 December 2019 on the basis that the Court has no jurisdiction to hear and determine it; and (b) the respondent's interlocutory application filed on 26 March 2020, with no order as to costs I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.
Gao
Tin
Factual background 11 The applicant commenced employment with the respondent as a sales team member in February 2015. The respondent contends that, on 8 March 2019, the applicant resigned from his position and the respondent accepted that resignation. In contrast, the applicant denies that he resigned. He contends that he was unfairly dismissed by the respondent on 9 March 2019 after requesting a reduction in his working hours. 12 The procedural history would appear not to be in dispute. The applicant represented himself at all times. On 25 March 2019, the applicant made an unfair dismissal application to the Commission pursuant to s. 394 of the FW Act. On 16 April 2019, the parties participated in a conciliation. On 17 April 2019, the applicant lodged a Notice of Discontinuance with respect to his unfair dismissal application. On the applicant's account, he did so on the basis that his case was not "purely about unfair dismissal" and involved other allegations such as underpayment, errors in his payslips, and outstanding leave loading and personal leave entitlements. On the same day, the applicant made a "general protections application involving dismissal" to the Commission pursuant to s. 365 of the FW Act. He alleged that the respondent had contravened s. 340 of the FW Act. That application was filed outside the 21-day period prescribed by s. 366 of the FW Act. The applicant therefore needed an extension of time. 13 The Commission determined that the applicant should not be allowed a further period within which to lodge his general protections application: Gao v. Tin Staffing Services [2019] FWC 5477. The Deputy President was not satisfied that "exceptional circumstances" existed for the purposes of s. 366(2) of the FW Act. The applicant sought to appeal that decision but was denied permission by the Full Bench of the Commission: Gao v. Tin Staffing Services [2019] FWCFB 8432. The Full Bench concluded at [18]-[19] of its decision: We also do not consider that the Deputy President's conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on the question of what constitutes "exceptional circumstances" for the purposes of s 366(2) of the FW Act. The matters identified by Mr Gao as justifying the grant of permission in the public interest lack any real connection to the subject matter of the decision, and we do not consider that they are such as to require the grant of permission under s 604(2). We do not consider the grant of permission to be in the public interest nor do we consider that there is any basis upon which permission to appeal should be given. Permission to appeal is therefore refused. 14 Critically, because the applicant failed to secure an extension of time, his intended application under s. 365 was not before the Commission in the requisite sense to engage s. 368 of the FW Act. It follows that the Commission did not, and was not called upon to, issue any certificate under s. 368(3)(a).
[2019] FWCFB 8432
(1995) 67 IR 298
1. The name of the respondent amended to 'Tin (Staffing Services) Pty Ltd'. 2. The originating application filed on 17 December 2019 dismissed. 3. The respondent's interlocutory application filed on 26 March 2020 dismissed. 4. No order as to costs. (Orders; Reasons [25])