Jocelyn Gould v Cubbyhouse Childcare Australia Pty Ltd

[2020] FWC 5824

[2020] FWC 5824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jocelyn Gould
v
Cubbyhouse Childcare Australia Pty Ltd
(C2020/7680)

COMMISSIONER BISSETT MELBOURNE, 4 NOVEMBER 2020

Application to deal with contraventions involving dismissal.

[1] Miss Jocelyn Gould has made two applications to the Commission in relation to her dismissal from employment.

[2] At 2.45pm on 14 October 2020 Miss Gould filed an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. That application was allocated case number U2020/13618.

[3] At 3.28pm on 14 October 2020 Miss Gould filed an application pursuant to s.365 of the FW Act in relation to a general protections dispute involving dismissal. That file was allocated case number C2020/7680.

[4] Both applications relate to the same circumstances and dismissal from her employment with Cubbyhouse Childcare Australia Pty Ltd.

[5] On 14 October 2020 the Commission wrote to Miss Gould (via her representative Mr Ashley Gould) and advised her that both applications had been received and that:

The Commission is unable to proceed with both applications as the Fair Work Act 2009 prevents a person from simultaneously making multiple applications relating to their dismissal from employment.

You must decide which of the above applications you intend to proceed with, and notify the Commission of your decision within 14 days from the date of this letter.

If you have not provided a response to the Commission within 14 days of the date of this letter, it will be assumed that you wish to proceed with the unfair dismissal application (s.394) and the other application will be taken to have been withdrawn.

[6] On 27 October 2020, not having received a response to the letter of 14 October 2020, the Commission again contacted Miss Gould and her representative by email. That correspondence said:

You have not advised the Commission of your intentions. For this reason the general protections application file will be closed and your unfair dismissal application will now be processed. If this is not your wish you have until 29 October 2020 to advise the Commission. Otherwise the general protections file will be closed.

[7] No response was received in relation to this correspondence.

[8] Division 3 of Part 6-1 of the FW Act is headed “preventing Multiple Actions”. Section 725 is part of Division 3 and states:

725 General Rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any of sections 726 to 732 in relation to the dismissal if any of those other sections applies.

[9] Section 727 of the FW Act relates to general protections applications to the Commission and s.729 applies to unfair dismissal applications.

[10] It follows from section 725 that, having made an application in relation to unfair dismissal (it having been made at 2.45pm on 14 October 2020), Miss Gould could not make an application under the general protections provisions involving dismissal (which she sought to make at 3.28pm on 14 October 2020).

[11] Section 587 of the FW Act allows the Commission, on its own motion, to dismiss an application for any reason including those reasons set out in s.587(1):

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b)  has no reasonable prospects of success.

(3)  FWA may dismiss an application:

(a)  on its own initiative; or

(b)  on application.

[12] The FW Act does not allow for multiple applications in relation to the same dismissal. For this reason, I am satisfied that the general protections involving dismissal application (C2020/7680) of Miss Gould was made contrary to this provision of the FW Act and therefore was not made in accordance with the FW Act.

[13] The general protections application is therefore dismissed. An order 1 to this effect will be issued in conjunction with this decision.

[14] The unfair dismissal application (U2020/13618) will be referred for conciliation. If Miss Gould no longer wishes to proceed with her unfair dismissal application she is asked to advise the Commission of this as soon as possible.

COMMISSIONER

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