Jonathan Kennard v Monadelphous Engineering Associates Pty Limited

[2024] FWC 3028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jonathan Kennard
v

Monadelphous Engineering Associates Pty Limited

(C2024/7256)

DEPUTY PRESIDENT EASTON

SYDNEY, 31 OCTOBER 2024

Application for relief from unfair dismissal – multiple applications – dismissal under s.587(1)(a) at the Commission’s initiative – application not made in accordance with this Act.

On 18 September 2024 Mr Jonathan Kennard made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act). Three weeks later on 10 October 2024 Mr Kennard made a general protections application under s.365 of the FW Act about the same dismissal.

Section 725 prevents the making of multiple applications in relation to the same dismissal:

“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.”

Section 729 refers to unfair dismissal applications and s.727 refers to general protections applications to the Fair Work Commission.
Mr Kennard’s first application had not been withdrawn or dismissed at the time he made his second application.

Section 587 of the FW Act provides as follows:

“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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

The second application was not “made in accordance with the Act” because s.725 prevented Mr Kennard from making the second application at the time that he did.

Commission staff have contacted Mr Kennard several times about his second application. Mr Kennard has been invited to withdraw the second application but he has not chosen to do so.

There are many important differences between the unfair dismissal provisions and the general protection provisions of the FW Act. It is possible that Mr Kennard’s preference is to pursue a general protections claim rather than an unfair dismissal claim. This possibility was canvassed in correspondence with Mr Kennard and one email sent to him included the following:

“… Please refer to the Full Bench decision of the Fair Work Commission in the matter of Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660 at [30]-[31].
If Mr Kennard wants to pursue a general protections claim instead of an unfair dismissal claim he should consider following the course referred to by the Full Bench above, discontinue both applications and file a new s.365 general protections claim. Alternatively, Mr Kennard might choose to continue with the first unfair dismissal application filed … and discontinue the general protections claim.”

Mr Kennard has responded to each communication from the Commission but has not indicated that he wants to discontinue the second application he made, being the general protections claim. Mr Kennard has made many criticisms of his former employer in his communications but has not squarely addressed the effect of s.725 on his second application.

Section 587 confers a discretion on the Commission to dismiss Mr Kennard’s second application because it was not made in accordance with the Act – subject to affording Mr Kennard procedural fairness.

Mr Kennard has been given ample opportunity to respond to the Commission’s concerns and the effect of s.725 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I have decided to dismiss Mr Kennard’s general protections claim using the power available under s.587(1)(a) and make the following order:

1. The application under s.365 of the Fair Work Act 2009 made by Mr Jonathan Kennard on 10 October 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to consider an application for relief from unfair dismissal by Mr Jonathan Kennard against Monadelphous Engineering Associates Pty Limited. Mr Kennard had made two separate applications to the Commission, the first being an unfair dismissal application under section 394 of the Fair Work Act 2009 (FW Act) and the second a general protections application under section 365 of the FW Act. The Commission was required to determine whether Mr Kennard’s second application was valid given that section 725 of the FW Act prevents multiple applications in relation to the same dismissal.

The central issue was whether Mr Kennard’s second application was permissible under the FW Act. The court had to consider the provisions of sections 725, 729, and 727, which restrict the making of multiple applications in relation to the same dismissal. It also had to examine section 587 of the FW Act, which provides the basis for dismissing an application if it is not made in accordance with the Act.

The Commission noted that Mr Kennard had not withdrawn his first application when he made the second, which contravened section 725 of the FW Act. Despite multiple communications from the Commission staff, Mr Kennard did not withdraw the second application. The court emphasised the importance of procedural fairness and the opportunity given to Mr Kennard to address the issue of the invalidity of his second application. The Commission concluded that Mr Kennard’s second application was not made in accordance with the Act and was therefore invalid. The court dismissed the general protections claim under section 587(1)(a) of the FW Act.

The court ordered that the general protections application made by Mr Jonathan Kennard on 10 October 2024 be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established