Catherine Mathews v Australian Catholic University Ltd T/A Australian Catholic University

[2021] FWC 5457

[2021] FWC 5457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Mathews
v
Australian Catholic University Ltd T/A Australian Catholic University
(U2021/7390)

COMMISSIONER WILLIAMS PERTH, 2 SEPTEMBER 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an unfair dismissal remedy application made under section 394 of the Fair Work Act 2009 (the Act) by Ms Catherine Mathews (the Applicant) on 19 August 2021. The Respondent is the Australian Catholic University Ltd T/A Australian Catholic University (the Respondent).

[2] This application was the subject of a hearing at which the parties provided submissions at the Commission’s direction as to the effect of section 725 of the Act on this application.

[3] The relevant facts are that on 18 June 2021 the Applicant made an unfair dismissal remedy application, U2021/5351, against the Respondent concerning the same dismissal that this application, U2021/7390, deals with.

[4] At the time application U2021/7390 was made, the prior application U2021/5351 remained on foot.

[5] The relevant provisions of the Act are sections 725 through to and including potentially section 732. These provisions which in short prohibit multiple applications being made about the same dismissal were considered by a Full Bench of the Commission in Chandra Gupta Narayan v MW Engineers Pty Ltd 1.

[6] In that decision the Full Bench considered how these provisions operate as follows.

“[15] Subdivision B of Division 3 of Part 6-1 of the Act is relevant to the determination of the second issue. Part 6-1 provides a set of legislative rules relating to applications for remedies under the Act. Division 3 of Part 6-1 prevents multiple applications or complaints in relation to the same conduct. In respect of unfair dismissal applications the ‘general rule’ is set out in s.725:

“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any of those sections applies.”

[16] Section 729 deals with unfair dismissal applications:

“(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction;

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) an unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[17] The effect of the general rule in s.725 is that if s.729 applies then the person who made the unfair dismissal application may not make any further complaint or application for relief under the Act or ‘another law’ (as defined in s.732). So if a dismissed employee (such as Mr Narayan) has made an unfair dismissal application under s.394(1) (as Mr Narayan has done) and none of the circumstances in s.729(1)(b) apply, then the dismissed employee (Mr Narayan) cannot make another application or complaint in relation to his or her dismissal under either the Act or under ‘another law’. This would preclude the dismissed employee from making:

•  a dismissal remedy bargaining order application under s.229;

•  a general protections application made under s.365 or Division 2 of Part 4-1;

•  an unlawful termination application made under Division 2 of Part 4-1;

•  an unfair dismissal application under s.394.”

[7] As at the date of this decision none of the circumstances in section 729(1)(b) of the Act apply to the prior application U2021/5351.

[8] Consequently, the effect of section 725 of the Act is that the Applicant was not able to make another application concerning her dismissal. Consequently, this second application U2020/7390 must be dismissed and an order [PR733456] to that effect will now be issued.

Appearances:

C Mathews on her own behalf.
K McCosh on behalf of the Respondent.

Hearing details:

2021.
Perth:
August 31.

Printed by authority of the Commonwealth Government Printer

<PR733455>

 1   [2013] FWCFB 2530.