Daniel Glover v Propel Group Pty Ltd, Sterling William Mcgregor

[2024] FWC 1943

[2024] FWC 1943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Daniel Glover
v

Propel Group Pty Ltd, Sterling William Mcgregor

(C2024/3710)

DEPUTY PRESIDENT CLANCY MELBOURNE, 25 JULY 2024

Application under s.365 of the Fair Work Act 2009 – s.725 enlivened – application dismissed pursuant to s.587(1)(a).

1. On 4 June 2024, Mr Daniel Glover made two applications to the Commission in relation to a dismissal from his employment with Propel Group Pty Ltd (the Respondent).

1. The first application was an unfair dismissal application lodged at 2:06pm, when Mr Glover filed a Form F2 – Unfair Dismissal Application (Form F2). This application was given the matter number U2024/6371 (the Unfair Dismissal application). The application fee for the unfair dismissal application was waived by the Commission on 18 July 2024.

1. The second application was a general protections FWC application under s.365 of the Fair Work Act 2009 (the Act). It was lodged at 4.44pm, when Mr Glover 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).

1. On 25 June 2024, I caused correspondence to be sent from my Chambers to the parties. This correspondence identified the two applications made by Mr Glover 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. Mr Glover was invited to advise the Commission whether he wished to continue with the s.365 application.

1. On 11 July 2024, Mr Glover emailed my Chambers, advising that he would like to proceed with the s.365 application and requesting, “If you can please advise the next steps as I inadvertently applied for F2 as well as F8”. On 19 July 2024, the unfair dismissal application was listed for a Mention to be held on 25 July 2024. I intended to discuss the operation of s.725 of the Act at the Mention and the issue impacting on the s.365 application.

1. On 22 July 2024, Mr Glover telephoned the Commission. Without addressing the 25 June 2024 correspondence, Mr Glover stated that he wanted to discontinue the unfair dismissal application. Mr Glover followed up this telephone call with an email to my Chambers, in which he sought an adjournment of the Mention. Mr Glover again outlined, without addressing the 25 June 2024 correspondence and s.725 of the Act, that he wished to pursue the s.365 application and his request for an adjournment of the Mention. The following day, Mr Glover provided a medical certificate from Dr Hugh Leslie dated 23 July 2024, which opined that Mr Glover “should be granted a delay of proceedings in regard to his unfair dismissal claim until 23^rd of August 2024”. I determined that the Mention for the unfair dismissal application should be adjourned, based on the certificate of Dr Leslie.

1. As to the s.365 application, s.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.”

1. Unfair dismissal applications and s.365 applications are applications with which s.725 is concerned. In the scenario before me, Mr Glover was prevented from making the s.365 application (an application “referred to” in s.727) because s.729 applied. This is because when Mr Glover lodged the s.365 application at 4.44pm on 4 June 2024, he had already made the unfair dismissal application and before doing so, the 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)).

1. 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 (U2024/6371), which remains open and will be reviewed for further case management on or around 23 August 2024.

DEPUTY PRESIDENT

[1] PR777443.

Printed by authority of the Commonwealth Government Printer

<PR777442>