Harpreet Singh v HNP Transport Logistics Pty Ltd

[2023] FWC 2177

[2023] FWC 2177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Harpreet Singh
v

HNP Transport Logistics Pty Ltd

(C2023/4239)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 NOVEMBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection.

1. Mr Harpreet Singh has made a general protections application involving dismissal (s.365 Application) pursuant to s.365 of the Fair Work Act 2009 (the Act) and the Respondent to the s.365 Application is HNP Transport Logistics Pty Ltd (Respondent). Directions of the Commission provided the parties with the opportunity to file and serve submissions, witness statements and documents they relied upon in relation to a jurisdictional objection raised by the Respondent that Mr Singh was not dismissed because he was not an employee.

1. The s.365 Application was listed for determinative conference/hearing on 7 September 2023, at which Mr Harinder Boparai attended for the Respondent, who in turn was given permission to be represented by Mr Rajiv Dala. Despite the Notice of Listing and a subsequent email from my Chambers confirming the determinative conference/hearing would be taking place at the Commission, Mr Singh did not initially attend. When telephoned, Mr Singh informed my Associate that he was at work driving a truck. An adjournment ensued so that Mr Singh could attend by telephone, but I did not consider the determinative conference/hearing could proceed in any substantive fashion because I was not convinced that Mr Singh was in a suitable location to participate fulsomely. While discussing the further conduct of the proceeding, it emerged that the Respondent intended to raise a further objection to the s.365 Application, based on the operation of s.725 of the Act. I therefore adjourned the determinative conference/hearing and issued new directions requiring the parties to provide submissions in relation to the Respondent’s s.725 objection. The parties subsequently agreed for this objection to be determined on the papers.

1. Section 725 of the Act prevents multiple applications being made in relation to the same dismissal in particular circumstances. It outlines the following:

“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.”

1. An application made under s.365 is an application referred to in s.727 of the Act and is therefore an application of a kind referred to in ss.726 to 732. Section 727 applies if the relevant person has made a s.365 application to the Commission in relation to the dismissal, and that application has not been withdrawn or has not failed for want of jurisdiction or resulted in the issue of certificate under s.368(3)(a) of the Act.

1. Mr Singh made the s.365 Application to the Commission on 17 July 2023 by filing a Form F8 – General Protections application involving dismissal (Form F8). Mr Singh responded to question 1.6 in the Form F8 (‘Have you made another claim to the Commission or to any other organisation regarding your dismissal’) in the negative. On 19 July 2023, Mr Singh made an application to the Victorian Small Business Commission (VSBC). This is apparent from the copy of email correspondence Mr Singh received from the VSBC on 19 July 2023 acknowledging receipt of an application form on 19 July 2023 that was provided to my Chambers on 9 September 2023.

1. The VSBC is established under the Small Business Commission Act 2017 (the SBC Act). Section 5 of the SBC Act sets out the functions of the VSBC. They include providing alternative dispute resolution to small businesses involved in disputes (s.5(e) of the SBC Act). It therefore appears that Mr Singh made application to the VSBC seeking for it to exercise its dispute resolution function. Section 10 of the SBC Act outlines the VSBC’s alternative dispute resolution function as follows:

“(1) In performing its alternative dispute resolution function under this Act, the Commission may determine the form of alternative dispute resolution to be used in the dispute.

(2) The Commission may charge fees and expenses for performing its alternative dispute resolution function.

(3) Subsection (2) does not affect the power of the Commission to charge fees and expenses under any other Act.”

1. Section 732 of the Act applies if:

   “(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

   (b)  the application or complaint has not:

   (i)  been withdrawn by the person who made the application; or

   (ii)  failed for want of jurisdiction.

   (2)  An application or complaint under another law is an application or complaint made under:

(a)  a law of the Commonwealth (other than this Act); or
(b)  a law of a State or Territory.”

1. It is not necessary for me to determine whether Mr Singh’s application to the VSBC is an application or complaint made under another law in relation to the alleged dismissal within the meaning of s.732(1)(a) of the Act. It is sufficient to record that I am satisfied, on the facts of this case, that the application to the VSBC was the second application made by Mr Singh following his alleged dismissal and because it was made after the s.365 Application was filed with the Commission, s.725 of the Act does not operate to prohibit the s.365 Application.

1. Given my conclusion, the Respondent’s objection to the s.365 Application, on the basis that it is made contrary to s.725 of the Act, must be dismissed.

1. A new Notice of Listing for a determinative conference/hearing of the jurisdictional objection raised by the Respondent that Mr Singh was not dismissed because he was not an employee will now be issued.

DEPUTY PRESIDENT

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