Angela Green v BHP Pty Ltd & Central Queensland Services Pty Ltd, Wade Sainsbury, Jamie Doidge, Scott Williams

[2024] FWC 2383

[2024] FWC 2383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Angela Green
v

BHP Pty Ltd & Central Queensland Services Pty Ltd, Wade Sainsbury, Jamie Doidge, Scott Williams

(C2024/2714)

DEPUTY PRESIDENT O’KEEFFE PERTH, 3 SEPTEMBER 2024

Dismissal involving breaches general protections – jurisdictional objection pursuant to s.725 – application dismissed.

1. Ms Angela Green has made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging she was dismissed in contravention of the general protection provisions. BHP Pty Ltd and Central Queensland Services Pty Ltd and Mr Wade Sainsbury and Mr Jaime Doidge and Mr Scott Williams (collectively “the Respondents”) object to the FWC dealing with the matter on the basis that the application was not properly made because of the effect of s.725 of the Act.

Background

1. On 24 April 2024, the Applicant lodged an unfair dismissal application (U2024/4754) against Queensland Central Services Pty Ltd under s 394 of the Act (the UFD Application). The following day, on 25 April 2024, the Applicant lodged a general protections involving dismissal application (C2024/2714) under s 365 of the Act (GP Application). The GP Application named multiple respondents including Central Queensland Services Pty Ltd, Mr Wade Sainsbury, Mr Jamie Doidge, Mr Scott Williams and BHP Pty Ltd.

1. On 10 June 2024 Ms Green wrote to the FWC and advised that she wished to discontinue the UFD Application and pursue the GP Application. The FWC conducted a conciliation conference for the GP Application on 25 July 2024 but the matter did not resolve. Ms Green then sought that a certificate pursuant to s.368(3) of the Act be issued but the Respondents objected to the issuing of the certificate on the grounds that the GP Application was in breach s.725 of the Act.

Consideration

1. I have examined the UFD Application and the GP Application. Both concern a dismissal that occurred on 4 April 2024 and Ms Green has lodged the same supporting documents with both applications. I am thus satisfied that the two applications relate to the same dismissal. Section 725 of the Act provides as follows:

“725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections  in relation to the dismissal if any other of those sections applies.”

1. Sections 727 and 729 of the Act provide as follows:

“727 General protections FWC applications

(1) [Section applies when application before FWC] This section applies if:

1. a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
2. the application has not:

1. been withdrawn by the person who made the application; or
2. failed for want of jurisdiction; or
3. resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)

…”

729 Unfair dismissal applications

(1) [Section applies when application before FWC] This section applies if:

1. an unfair dismissal application has been made by the person in relation to the dismissal; and
2. the application has not:

1. been withdrawn by the person who made the application; or
2. failed for want of jurisdiction; or
3. failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.”

1. It can be seen that s.729 applies where a person has made an unfair dismissal application and that application has not been withdrawn or has failed for want of jurisdiction or because the dismissal was a case of genuine redundancy. The effect of s.725 is that a person cannot lodge a second application in relation to the same dismissal if, at the time the second application is made, the first application had not concluded. Section 725 applies to only certain types of legal proceedings (being those referred to in sections 726 to 732).

1. I should note that case precedent has determined that an application is “made” when it is lodged with the FWC. In the case before me, the UFD Application was made on 24 April and the GP Application was made on 25 April 2024. The status of the UFD Application on 25 April is clear from the FWC’s records. The UFD Application had been made and it had not been withdrawn or failed for any reason. The UFD Application was therefore on foot at the time the GP Application was made. Given this, s.725 makes it clear that the GP Application could not be made.

1. The question that must be addressed is whether the GP Application was validly made as per the requirements of the Act. It is clear from the case authorities that the GP Application was not validly made. The Respondent has referred me to the findings of the Full Bench in the matter of Ioannou v Northern Belting Services Pty Ltd[1](Ioannou). In that case the Full Bench considered the operation of s.725 and found as follows:

“In relation to the present matter, the effect of s.725 is that the applicant must not make an application in relation to his dismissal under s.365 unless the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy (s.729(1)(b)). In other words, s.725 of the Act operates to preclude the applicant from bringing a general protections application in circumstances where there is an extant s.394 application before the Commission
…
It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons).
…
The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act.”

1. Ms Green might consider following what the Full Bench in Ioannou described as the “appropriate course”, but that is a matter for her.

1. The findings in Ioannou were also adopted by the Full Bench in Rui Liu v JHC Corporate and ors[2] where the Full Bench found as follows:

“For the purposes of the present matter, it is clear enough from the plain wording of the relevant sections of the Act, the Explanatory Memorandum, and the reasoning of the Full Bench in Ioannou that the only circumstances in which the Appellant in the present matter could make a valid GP Application is where her unfair dismissal application had been either withdrawn, failed for want of jurisdiction or failed because her dismissal was found to be a genuine redundancy. Absent those conditions being present, she is statutorily barred from making her GP Application.”

1. In the present matter while it is the case that the UFD was withdrawn, it was not withdrawn until some 46 days after the GP Application was made. As such, at the time that the GP Application was made Ms Green was prevented from making that application by virtue of s.725. As a consequence, the GP Application was not properly made and the FWC must dismiss the application on that basis (per s.587(1)(a)). An order to that effect will issue.[3]

DEPUTY PRESIDENT

[1]  Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [28] and [30]-[31]

[2] Rui Liu v JHC Corporate Pty Ltd and ors [2022] FWCFB 16 at [21]

[3] PR778925.

Printed by authority of the Commonwealth Government Printer

<PR778924>