Foong Lachlan v Novacare Incorporated

[2013] FWC 971

[2013] FWC 971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Foong Lachlan
v
Novacare Incorporated
(U2012/9825)

DEPUTY PRESIDENT HARRISON NEWCASTLE, 11 FEBRUARY 2013

Application for unfair dismissal remedy - hearing re jurisdiction conducted - application dismissed for want of jurisdiction.

[1] This application was lodged on 27 September 2012 by Mrs Foong Lachlan (the Applicant) who had been employed by Novacare Pty Ltd (the Respondent) from 10 November 2008 to 13 September 2012 as a Finance Manager.

[2] The matter was subject to a jurisdictional objection which was heard on 8 February 2013.

[3] The Applicant appeared on her own behalf with her husband, Mr K Lachlan. Ms M McNaughton, solicitor of Enterprise Law, appeared with Mr J McCarthy for the Respondent.

[4] Ms McNaughton put that this application is excluded by Division 3 of Chapter 6 of the Fair Work Act 2009 (the Act) which prevents multiple actions, specifically relying upon s.725 and s.727 which state:

725 General rule

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.

727 General protections FWA applications

(1) This section applies if:

(a) a general protections FWA application has been made by, or on behalf of, 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(i) been withdrawn by the person who made the application; or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; or
(iii) resulted in the issue of a certificate under section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).

(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.

[5] The Applicant had filed a Form F8A Application to deal with a general protections dispute pursuant to s.365, s.372 of the Act on 11 September 2012 (C2012/5269), which was subject to conference proceedings before the Commission as presently constituted on 26 September 2012, resulting in an agreement to be executed by deed.

[6] Nothing more was heard from the Applicant or her solicitor of record in the general protections matter, despite several enquiries to the solicitor.

[7] The General Protections matter was concluded for want of prosecution on 4 December 2012.

[8] The Applicant was afforded two adjournments during the course of these jurisdictional proceedings to firstly examine the legislation relied upon by the Respondent; and secondly to seek evidence that the General Protections matter had been withdrawn. During the second adjournment the Applicant completed a notice of discontinuance for the General Protections matter.

[9] The applicant put that she had not previously been aware of the requirement to withdraw the General Protections matter and had only instructed her solicitor in that matter that she did not agree to the terms of the deed drafted by the Respondent arising from the conference proceedings of 26 September 2012.

[10] The Respondent object to the purported discontinuance of the General Protections matter during the course of these proceedings.

[11] The proper time for withdrawal of the General Protection matter was at the time the unfair dismissal proceedings were lodged.

Conclusion

[12] An ex tempore decision was issued in proceedings dismissing the present matter for want of jurisdiction.

[13] The terms of s.725 and s.727 are clear and inescapable in prohibiting the unfair dismissal matter in the circumstances of the earlier General Protections matter. The legislation provides no discretion to admit this application for unfair dismissal remedy.

[14] Matter U2012/9825 is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

Ms F Lachlan (Applicant)

Ms M NcNaughton (respondent)

Hearing details:

2013

Newcastle

8 February

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