Courtney Lynch v BMSF Pty Ltd
[2024] FWC 2915
•22 OCTOBER 2024
| [2024] FWC 2915 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Courtney Lynch
v
BMSF Pty Ltd
(C2024/6335)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 22 OCTOBER 2024 |
Application under s.365 of the Fair Work Act 2009 – s.725 enlivened – application dismissed pursuant to s.587(1)(a).
On 5 September 2024, Mrs Courtney Lynch made two applications to the Commission in relation to a dismissal from his employment with BMSF Pty Ltd (the Respondent).
The first application was an unfair dismissal application lodged at 11:03pm, when Mrs Lynch filed a Form F2 – Unfair Dismissal Application (Form F2). This application was given the matter number U2024/10437 (the Unfair Dismissal application). The application fee for the unfair dismissal application was waived by the Commission on 19 September 2024.
The second application was a general protections application under s.365 of the Fair Work Act 2009 (Act). It was lodged at 11.12pm, when Mrs Lynch lodged a Form F8 – Application to deal with a general protections dispute involving dismissal (Form F8). This application was given the matter number C2024/3710 (the s.365 application).
On 16 October 2024, I caused correspondence to be sent from my Chambers to the parties. This correspondence identified the two applications made by Mrs Lynch and outlined that s.725 of the Act prohibits the making of multiple applications in relation to the same dismissal and, in particular, that a second application must not be made. The parties were informed that it was my provisional view that the s.365 application, being the second application made, was not a valid application because it had not been made in accordance with the Act. Mrs Lynch was invited to advise the Commission whether she wished to continue with the s.365 application.
On 16 October 2024, Mrs Lynch emailed my Chambers, advising that she would like to proceed with the s.365 application, stating: “Please note the date on the forms, this was created a month earlier when the initial issue arose when:…”. The remainder of Mrs Lynch’s email went to the merits of her application and did not address the issue of her holding two concurrent dismissal disputes. Mrs Lynch informed Chambers that she was overseas and unable to attend the Conciliation which had been listed for her unfair dismissal application on 18 October 2024. It appears that Mrs Lynch’s email is referring to the fact that that, on 29 February 2024, she lodged an incomplete non-dismissal dispute application with the Commission. That application was dismissed, and the matter was closed on 2 May 2024. Further, on 5 September 2024, at 11:25pm, Ms Lynch lodged a third dismissal dispute application under s.773 of the Act, application to deal with unlawful termination. This application was given matter number C2024/6242. Ms Lynch discontinued this application via a telephone call to the Commission on 6 September 2024.
Section 725 of the Act prevents, in particular circumstances, multiple applications being made in relation to the same dismissal and provides:
“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 other of those sections applies.”
Unfair dismissal applications and s.365 applications are applications with which s.725 is concerned. Having regard to the factual background, Mrs Lynch was prevented from making the s.365 application (an application “referred to” in s.727) because s.729 applied. This is because when Mrs Lynch lodged the s.365 application at 11.12pm on 5 September 2024, she had already made the unfair dismissal application and before doing so, that unfair dismissal application had not:
Been withdrawn by him (s.729(1)(b)(i)); or
Failed for want of jurisdiction (s.729(1)(b)(ii)); or
Failed because the Commission was satisfied that the dismissal was a case of genuine redundancy (s.729(1)(b)(iii)).
As such, I am satisfied that the s.365 application was not made in accordance with s.725 of the Act and that it is appropriate that I exercise the power in s.587(1)(a) of the Act to dismiss it. An Order[1] to this effect will be issued with this decision. It should, however, be noted that this decision does not impact the Unfair Dismissal application (U2024/10437), which remains open and will be allocated to a Member to determine.
DEPUTY PRESIDENT
[1] PR780469.
Printed by authority of the Commonwealth Government Printer
<PR780430>
0
0
0