Daniel Morgan v The Trustee for Mustafa & Arzu Trust

[2023] FWC 3210

[2023] FWC 3210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Daniel Morgan
v

The Trustee For Mustafa & Arzu Trust

(C2023/6330)

COMMISSIONER P RYAN SYDNEY, 4 DECEMBER 2023

Application to deal with contraventions involving dismissal

Introduction

1. This is an edited version of my decision delivered ex tempore and recorded in transcript on 4 December 2023.

1. An application by Mr Daniel Morgan (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) was made on 16 October 2023 (Application).

1. In the Application, the Applicant states that his employment with The Trustee for the Mustafa & Arzu Trust (Respondent) was terminated with effect from 24 September 2023.

1. An application made pursuant to s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Although the Application was made 22 days after the date the dismissal took effect, as the last day of the 21 day period fell on a Sunday, the 21 day period is extended until the next day that is not a Saturday, Sunday or a public holiday.[1]

Jurisdictional Objections

1. In its response, the Respondent raised two jurisdictional objections to the Application as follows:

(i)The Applicant has not alleged that the dismissal was in contravention of the general protections in the FW Act; and

(ii)The Applicant has made another application dealing with the dismissal.

The Applicant has not alleged that the dismissal was in contravention of the general protections in the FW Act

1. This objection raises the issue of whether the Applicant satisfied the requirement in s.365(b) of the FW Act which requires an allegation that he was dismissed in contravention of Part 3-1 of the FW Act.

1. The Application was made on a Form F8 – General protections application involving dismissal. At part 3.2 of the Application, the Applicant identified s.340 of the FW Act as the section the Respondent allegedly contravened. At parts 3.1 and 3.3 of the Application, the Applicant sets out the facts and circumstances pertaining to his dismissal, before stating:

The Respondent took adverse action against the Applicant in contravention of section 340 of the Fair Work Act 2009 because the Applicant made a complaint or inquiry in relation to their employment as is their workplace right under section 341(1)(c)(ii) of the Fair Work Act 2009.

1. In Tilers Trade Outlet (Vic) Pty Ltd v Julia Cochrane,[2] a Full Bench of the Commission stated:

[22] In Coles Supply Chain v Milford, the Full Court of the Federal Court determined that the Commission’s powers to deal with a dismissal dispute under s 368 are only enlivened if an application is properly made under s 365. The Full Court said:

The second observation that may be made is that s 365 contains two criteria conditioning a person’s entitlement to make an application. The first criterion is expressed in objective terms: the person has been dismissed. The second criterion is also expressed in objective terms, albeit by reference to the fact that an allegation has been made that “the dismissal” was in contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b), but not in the criterion in s 365(1)(a). In its ordinary meaning, the criterion in s 365(1)(a) will be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an applicant asserts that he or she has been dismissed. The words “the dismissal” to which subs (b) refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in fact.

[23] All that is required for satisfaction of the criterion in s 365(b) of the FW Act is that there be an allegation the relevant person was dismissed in contravention of Pt 3–1 of the FW Act. On its ordinary meaning, a person alleges something if they assert it without proof. The relevant jurisdictional fact required by s 365(b) is that the allegation of a contravention of Pt 3-1 has been made. In satisfying itself that it has a competent application before it, the Commission is not required to undertake an assessment as to whether there have been facts pleaded which might reasonably support the allegation. Nor does it need to consider whether the allegation has any merit or is reasonably arguable, noting that s 587(2) of the FW Act prohibits the Commission from dismissing an application under s 365 on the ground that it is frivolous or vexatious or has no reasonable prospects of success.

[Footnotes omitted].

1. There is no dispute that the Applicant was dismissed by the Respondent, and it is abundantly clear on the information set out in the Application that the Applicant has alleged that his dismissal was in contravention of Part 3-1 of the FW Act.

1. Accordingly, the Respondent’s first jurisdictional objection is dismissed.

The Applicant has made another application dealing with the dismissal

1. Turning to the second jurisdictional objection, Part 6-1 of the FW Act deals with multiple actions and prevents multiple applications or complaints in relation to the same conduct. For example, part 6-1 provides that a general protections dismissal dispute application must not be made if another application or complaint dealing with the dismissal (such as an unfair dismissal application) has also been made.[3]

1. If another application or complaint is made, s.725 of the FW Act operates as a bar to the Application being made.

1. The Applicant filed a signed statement that the Application was the “first and only claim he has made”.

1. While the Respondent disputed this, it was unable to identify any other application or complaint relating to its dismissal of the Applicant and confirmed during the proceedings before me that the Application was the only application or complaint it was aware of which related to the Respondent’s dismissal of the Applicant.

1. It appears that the Respondent’s objection is based upon its belief that the Applicant has made some type of application against the previous operator of the Respondent’s business relating to employment prior to the Applicant’s transfer to the Respondent, rather than an application or complaint relating to the Respondent’s dismissal of the Applicant.

1. In absence of any other application or complaint being made in relation to the Respondent’s dismissal of the Applicant, the Respondent’s second jurisdictional objection is dismissed.

Disposition

1. The Respondent’s jurisdictional objections are dismissed. The Application will now proceed to a conference pursuant to s.368 of the FW Act.

COMMISSIONER

Appearances:

Mr F Petrelis, with permission, for the Applicant.
Mr M Koch, for the Respondent.

Hearing details:

2023.
Sydney (via Microsoft Teams video-link):
4 December.

[1] Section 36(2) of the Acts Interpretation Act 1901.

[2] [2023] FWCFB 170

[3] See ss.725, 727 and 729 of the FW Act.

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