Charlee Ketting-Molloy v The Trustee for Eden Academy Operations Unit Trust

[2024] FWC 2866

[2024] FWC 2866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Charlee Ketting-Molloy
v

The Trustee for Eden Academy Operations Unit Trust

(C2024/6262)

DEPUTY PRESIDENT O’KEEFFE PERTH, 17 OCTOBER 2024

Section 365 application – Application not properly made - application dismissed pursuant to s.587 of the Act.

1. On 4 September 2024 Ms Charlee Ketting-Molloy (the Applicant) lodged a s.365 application against The Trustee for Eden Academy Operations Unit Trust.  On 11 September 2024 the Commission’s Registry wrote to the Applicant noting that she had filed an unfair dismissal application (U2024/10401) and that this was not permissible.

1. The matter was allocated to my Chambers on 30 September 2024.  On 2 October I sent the Applicant the following email:

   “Dear Ms Ketting-Molloy,

   The above application has been allocated to Deputy President O’Keeffe.  The Deputy President has examined the Fair Work Commission’s files for both this application and also for application numbered U2024/10401.  From that examination, the Deputy President advises that the timeline of events is as follows:

   3^rd September                            Applicant terminated
   4^th September 10.50am             Applicant lodges unfair dismissal claim U2024/10401
   4^th September 13.35pm             Applicant lodges general protections claim C2024/6262

   11^th September                          FWC advises Applicant that she has lodged multiple applications and that C2024/6262 is invalid.

   11^th September                          Applicant withdraws unfair dismissal claim U2024/10401

   Section 725 of the fair Work Act prohibits the making of multiple applications regarding the same matter.  If a party has made an application with respect to a termination, they cannot make another application with respect to that termination (even if it is a different type of application) until the original application has been withdrawn or has failed for want of jurisdiction.  It is clear from the above timeline that the general protections claim C2024/6262 was lodged before the unfair dismissal claim U2024/10401 was withdrawn.  As such, claim C2024/6262 is not properly made and cannot proceed.

   To assist the parties, the Deputy President refers them to the following extract of a decision of the Full Bench of the FWC in Peter Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660:

   “[28]     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.”

   Given this, the Applicant is invited to withdraw her application numbered C2024/6262.  The Deputy President advises that if the claim is not withdrawn he will issue a decision dismissing the application as it is not properly made.

   If the Applicant withdraws the claim it is open to her to lodge another general protections claim, albeit that such claim will be outside the 21-day time limit.  Where a claim is outside the time limit an Applicant needs to seek an extension of time from the FWC so that the claim can be accepted.  Advice on such extensions can be found here: Extension of time for lodging an application | Fair Work Commission (fwc.gov.au)

   Can Ms Ketting-Molloy please advise by return email no later than 4.00pm (AWST) Friday 4^th October 2024 how she intends to proceed?”

2. On 4 October 2024 the Applicant sent the following email to Chambers:

   “Hiya, I'm just emailing to see where the case is up too, whether I need to fill any forms out or anything on my end I need to do.
   I also want to clarify that what I am wanting from this is not only to be able to work for Eden Academy as the company itself is amazing but the main reason for all of this is for a reasoning as to why I was fired, I was never given a reason, I never did anything wrong to give them a reason to fire me, I read through my contract and read all the reasons people can be terminated and none of those coincided with any of my practices whilst working for Eden Academy.
   I asked twice in person when handed the form as to why I was fired and again on email to the area manager, all times I was denied an answer. I just want to know what grounds they stand on to terminate me. I never did anything wrong besides make the director of Eden Academy Glenelg aware of how her educator was treating staff AND children... I'm not looking for a long court case or anything like that, I'd simply like to know why they fired me as I never did anything wrong and if I did do something wrong or went against the contract I would like to know what I supposedly did wrong. I would also like to be able to work for Eden Academy in the future without issues. The company is amazing, the director at Eden Academy Glenelg fired me for no reason as to why I have created this case.
   Let me know if there's anything else I can add or help with.
   Thankyou,
   Charlee Ketting-Molloy”

3. On 7 October 2024 I emailed the Applicant and included a copy of the email above at paragraph 2, noting that she had not responded and that a response was now required by 4.00pm (AWST) 9 October 2024.  No response was received.

4. Section 587(1)(a) provides that the FWC may dismiss an application that is not properly made in accordance with the Act.  It is clear that application C2024/6262 has been made in breach of s.725 of the Act, which prohibits multiple applications.  Given this, I will make an order dismissing the application.[1]

DEPUTY PRESIDENT

[1] PR780303.

Printed by authority of the Commonwealth Government Printer

<PR780288>