Jia Ye v Marubeni Australia Limited

[2025] FWC 2368

[2025] FWC 2368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jia Ye
v

Marubeni Australia Limited

(C2025/2622)

COMMISSIONER SLOAN SYDNEY, 13 AUGUST 2025

Application to deal with contraventions involving dismissal – jurisdictional question – application filed when claim under Anti-Discrimination Act 1977 (NSW) on foot – whether applicant precluded from making general protections application

1. On 1 April 2025, Jia Ye filed an application for the Commission to deal with a general protections dispute involving dismissal (“GP Application”), under section 365 of the Fair Work Act 2009. She alleged that her former employer, Marubeni Australia Limited, had taken adverse action against her on the basis of her race, sex and pregnancy.

1. Marubeni Australia filed a response to the GP Application on 22 April 2025. It objected in part to the GP Application on jurisdictional grounds. It contended that a part of the GP Application was out of time. That objection was ultimately resolved. I subsequently listed the matter for conference under section 368 of the Fair Work Act on 10 June 2025.

1. However, on 9 June 2025, my Chambers received an email from Ashurst Australia, Marubeni Australia’s solicitors, which stated in part:

“Multiple proceedings

The Respondent has recently been notified that on 18 March 2025, the Applicant filed a complaint with Anti-Discrimination New South Wales alleging unlawful race and sex discrimination (Complaint). The discriminatory conduct alleged in the Complaint includes grounds which are substantially similar those which form part of her Application in the present proceedings in the Fair Work Commission; including the pregnancy discrimination claims which the Applicant has pressed to retain as part of these proceedings.

…
The Respondent is of view that by operation of section 725, 727 and 732 of the Fair Work Act 2009 (Cth), the Applicant cannot proceed with both applications and must elect to discontinue one of the two proceedings.

Upcoming conciliation

The Respondent reserves its rights in relation to disputing the multiple proceedings.

Despite this position, the Respondent remains willing to participate in the Fair Work Commission conciliation conference that has been listed for Tuesday, 10 June 2025.”

1. The listing on 10 June 2025 was maintained, but did not proceed as a conference under section 368. At that time, I discussed with the parties the matters arising from Ashurst’s email of 9 June 2025. I directed that the parties confer as to the directions that I should make so as to determine the jurisdictional question raised by Ashurst, including whether it was necessary for me to convene a hearing or whether the question could be determined “on the papers”. Ms Ye was directed to inform my Chambers of the outcome of the parties’ discussions by 17 June 2025.

1. On 17 June 2025, my Chambers received an email from Dong & Partners, Ms Ye’s solicitors, which stated in part:

“We refer to the Commissioner’s directions on 10 June 2025 below.

Our client withdrew the ADNSW Claim on 17 June 2025 pending ADNSW’s confirmation. The respondent’s solicitors were informed of this.

The respondent’s solicitors were also informed of and content [sic] with our client’s position that, given our client’s ADNSW claim has been withdrawn, the jurisdictional issue should be resolved without the need for the Commissioner to make any decisions.

As such, our client’s general protection claim with FWC could move forward. Thanks.”

1. On 18 June 2025 my Chambers received a further email from Dong & Partners. It attached an email from Anti-Discrimination NSW to Ms Ye of the same date confirming that her complaint under the Anti-Discrimination Act 1977 (NSW) against Marubeni Australia (“AD Complaint”) had been withdrawn.

1. Later that day, I arranged for my Chambers to send an email to the parties which stated in part:

“Ms Ye’s withdrawal of her complaint to Anti-Discrimination NSW (‘AD Complaint’) may not resolve the obstacles posed by sections 725, 727 and 732 of the Fair Work Act 2009.

Our concern may be summarised in this way: At the time Ms Ye filed her application in these proceedings (‘GP Application’), the AD Complaint had not been withdrawn. If the AD Complaint was ‘in relation to [Ms Ye’s] dismissal’ (to adopt the language of section 732(1)(a)), section 732 applied. The GP Application is of a kind referred to in section 727. It follows that at the time Ms Ye sought to file the GP Application, she was apparently precluded by section 725 from doing so. That is, the GP Application was not validly made. If this is correct, the subsequent withdrawal of the AD Complaint is of no consequence. It cannot render valid an invalidly made application.

Again assuming our position to be correct, the GP Application cannot proceed. If she wishes to pursue her claim, Ms Ye would be required to discontinue the GP Application and commence proceedings afresh. (For an analogous case, see Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660 at [30]-[31].)

If Ms Ye wishes to withdraw the GP Application, we invite you to respond to this message confirming that by 4.00pm on 20 June 2025.

However, if you contend that there is a legal basis by which the GP Application can continue, the Commissioner will need to determine the matter. If that is the case, the Commissioner makes the following directions:

1.The parties are to confer as to the directions that the Commissioner should make so as to determine the jurisdictional question raised above. This should include whether it is necessary for the Commissioner to convene a hearing or whether the question can be determined ‘on the papers’.

2.The Applicant is to inform Chambers via email of the outcome of those discussions by 4.00pm on 20 June 2025.”

1. On 20 June 2025, my Chambers received an email from Dong & Partners which set out the directions that the parties proposed. These included that, following the parties filing and serving the material on which they wished to rely on the jurisdictional question, the matter would be determined on the papers. I made those directions and have proceeded accordingly.

Relevant legislation and principles

1. Part 6-1 Division 3 of the Fair Work Act is titled “Preventing multiple actions”. Subdivision B is titled “Applications and complaints relating to dismissal”. It relevantly contains the following provisions:

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 FWC applications

(1) This section applies if:

(a) a general protections FWC 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 paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

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

…
732  Applications and complaints under other laws

(1)   This section 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. The effect of those provisions, by reference to relevant authorities, was accurately summarised in Marubeni Australia’s submissions. For convenience, I reproduce those submissions:

“6.       Those provisions go to the validity of an application before the Commission, and the Commission's jurisdiction to deal with it (Bosco Alex v Costco Wholesale Australia[2014] FWC 1904 (Costco) at [11]; Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University)[2023] FWC 10 at [7]). They erect a prohibition on an application being made under section 365 if another application has been made so that section 725 is enlivened, statute barring such an application (Peter Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660 at [30]; Karren Hazledine v Kirk Wakerley & Ben Giddings [2017] FWCFB 500 at [14]). The provisions are intended to have a wide application (Birch v Wesco Electronics (1966) Pty Ltd [2022] [sic – [2012]] FMCA 5 (Birch) at [87]).

7. That prohibition is temporal due to the words in section 725 – ‘must not make’. That prohibition on making an application under section 365 operates at the time that the application is purported to be made to Commission [sic] (see Piefke v Workpac Pty Ltd [2021] FCCA 1166 at [12](a); Birch at [41]-[61]). 

8. The provision applies to a person who, at the time of making the application to the Commission, ‘has been dismissed’. That is the temporal precondition that enlivens section 725… If, at that time, there is any other application on foot in relation to the dismissal which enlivens section 725, then it is barred and no valid application is made.

9. Accordingly, the subsequent withdrawal of an application under another law relating to a dismissal, does not cure the invalidity of an application purported to have been made to the Commission under section 365. That simply removes the bar to making such an application after the withdrawal (Costco at [12], [15]).

10. The jurisdiction of the Commission to deal with an application, by conducting a conference under section 368(1) of the FW Act is conditional on an valid application being made under section 365.”

1. Marubeni Australia’s challenge to the Commission’s jurisdiction to deal with the GP Application must be resolved before the Commission can exercise any of the powers the Fair Work Act confers on it.[1]

Factual context

1. For present purposes, the relevant factual context can be briefly stated.

1. Marubeni Australia employed Ms Ye as a Sales Coordinator. In mid-2024, it informed her that the part of the business in which she was employed was to be transferred to an associated entity, Rangers Valley Cattle Station Pty Ltd. In August 2024, Ms Ye was offered employment with Rangers Valley.

1. In a letter to Ms Ye dated 27 August 2024, Marubeni Australia stated in part:

“Ongoing, you have been offered a position within the Rangers Valley team allowing you to continue your employment with the Marubeni Group when this transition is complete.  This position is substantially similar in all important respects to your current position, although there are some minor differences. In broad terms, the hours of work, location of the work (Sydney CBD and work from home), work tasks and aggregate remuneration are the same, although with some small changes, for example in the way remuneration is structured.

…
Please note that in a change of employer within the Marubeni Group into a substantially similar position, Marubeni does not consider this change represents a redundancy for you.  Rather it is a transfer of employment between associated entities with ongoing service.  Not taking up this position and there being no other position in MAL for which you can be considered, will mean you effectively resign from Marubeni.”

1. In its response to the GP Application, Marubeni Australia conceded that it was in error in stating that Ms Ye would “effectively resign” if she did not accept the offer of employment with Rangers Valley. It sent a further letter to Ms Ye on 28 August 2024 (incorrectly dated 23 August 2024). In that letter, Marubeni Australia stated that if Ms Ye did not accept employment with Rangers Valley, her employment with Marubeni Australia “may be terminated due to redundancy”. The letter confirmed the company’s position that in those circumstances, Ms Ye would not receive any redundancy payment.

1. Ms Ye did not accept the offer of employment with Rangers Valley. In a letter dated 2 December 2024, Marubeni Australia informed Ms Ye that it would continue to engage her on work related to the transfer of business until the end of March 2025. In the meantime, it would continue to explore opportunities for her to remain employed with Marubeni Australia or related businesses beyond that date.

1. A disagreement arose between Ms Ye and Marubeni Australia regarding her entitlements on the foreshadowed termination of her employment. In short, she contended that she was entitled to receive payment in lieu of notice and redundancy pay. Marubeni Australia disputed that she had any such entitlements.

1. On 18 March 2025, Marubeni Australia informed Ms Ye that on the termination of her employment she would receive payment only of her accrued but untaken annual leave and long service leave.

1. On the same day, Ms Ye made the AD Complaint to Anti-Discrimination NSW. On 21 March 2025, she received an email from Anti-Discrimination NSW which referred to the AD Complaint as having been “lodged with the President of the Anti-Discrimination Board on 18 March 2025”. It further stated:

“The President’s delegate has decided as follows:

1. To accept for investigation, under section 89B, a complaint of sex discrimination in employment against Marubeni Australia Ltd for events/conduct alleged to have occurred from 18 March 2024 to 18 March 2025.

2. To accept for investigation, under section 89B, a complaint of race discrimination in employment against Marubeni Australia Ltd for events/conduct alleged to have occurred from 18 March 2024 to 18 March 2025.”

1. Ms Ye’s employment with Marubeni Australia came to an end on 31 March 2025. The next day she filed the GP Application with the Commission.

Did section 732 of the Fair Work Act apply?

1. Marubeni Australia contended that at the time Ms Ye made the GP Application, section 732 of the Fair Work Act applied. It submitted that as a result that she was statutorily barred from making the GP Application.

1. The following matters are uncontroversial:

(1) The AD Complaint was brought under section 89B of the Anti-Discrimination Act.

(2) Consequently, it was a “complaint under another law” within the meaning of section 732(2) of the Fair Work Act.

(3)  The AD Complaint was “made, by or on behalf of” Ms Ye. This is reflected in the terms of the email from Anti-Discrimination NSW to Ms Ye of 21 March 2025.[2]

(4)  As at the date Ms Ye sought to make the GP Application, she had not withdrawn the AD Complaint and it had not failed for want of jurisdiction.

1. The question which arises is whether the AD Complaint was “in relation to the dismissal”, within the meaning of section 732(1)(a) of the Fair Work Act. The answer to that question is no, for the following reasons.

1. I accept Marubeni Australia’s submissions that through the AD Complaint, Ms Ye sought to challenge aspects of her impending dismissal. In the AD Complaint, she made the following contentions:

“During the redundancy process in 2025, I was unfairly denied a redundancy package, which was granted to a Japanese employee in the same situation.”

“Recent threats from the HR manager regarding my redundancy have further exacerbated my distress, causing serious anxiety and insomnia, as evidenced by my medical records.”

1. Ms Ye annexed a number of documents to the AD Complaint. They included the letter from Marubeni Australia of 27 August 2024 referred to above, and an email exchange between herself and Christopher Dunwell, Marubeni Australia’s Human Resources Manager, on 5 and 6 March 2025. That email exchange related to Ms Ye’s claims that she was entitled to receive payment in lieu of notice and redundancy pay on her dismissal. The letter and the email exchange raise no issues beyond the impending termination of Ms Ye’s employment.

1. But the fact remains that Ms Ye had not been dismissed at the time she made the AD Complaint. She was not dismissed until 31 March 2025. It is of no consequence that she knew by 18 March 2025 that her employment was to come to an end on that date.

1. This flows from the language of the relevant provisions of the Fair Work Act. Section 275 provides that a person “who has been dismissed” must not make a relevant application or complaint “in relation to the dismissal” (my emphasis). The use of the past tense and the definite article demonstrates that the section is predicated on the dismissal having taken effect. The reference to “the dismissal” in section 732(1)(a) must be read as being the same dismissal as that referred to in section 725.

1. To uphold Marubeni Australia’s objection would require words to be read into section 275. That is, it would have to be read as saying something like: “A person who has been dismissed, or who has been given notice of dismissal, 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, or threatened dismissal, if any other of those sections applies.” Words would similarly have to be read into the succeeding provisions of the Fair Work Act.

1. For these reasons, I find that the AD Complaint was not “an application or complaint…in relation to the dismissal” within the meaning of section 732 of the Fair Work Act. That section did not apply at the time Ms Ye made the GP Application. Consequently, section 725 did not operate to prelude Ms Ye from making the GP Application.

Disposition

1. I dismiss Marubeni Australia’s objection to the GP Application.

1. The matter will be listed for conference under section 368(1) of the Fair Work Act.

COMMISSIONER

[1] Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [67]

[2] See Tracey-Anne Kathleen Rising v Barto Gold Mining, Yuxin Holdings Pty Limited[2025] FWC 1405 at [24]-[25]

Printed by authority of the Commonwealth Government Printer

<PR790646>