Justin Hehir v Hanson Construction Materials Pty Ltd

[2024] FWC 2398

[2024] FWC 2398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Hehir
v

Hanson Construction Materials Pty Ltd

(U2024/8936)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 SEPTEMBER 2024

Application for an unfair dismissal remedy – s.725 enlivened – application dismissed pursuant to s.587(1)(a)

1. On 22 July 2024 and again on 1 August 2024, Mr Justin Hehir (the Applicant) lodged applications with the Fair Work Commission (the Commission) in relation to a dismissal from his employment with Hanson Construction Materials Pty Ltd.

1. The first application was a general protections application under s.365 of the Fair Work Act 2009 (the Act). It was lodged at 5:57pm on 22 July 2024, when the Applicant filed a Form F8 – Application to deal with a general protections dispute involving dismissal (Form F8). The application was assigned the matter number C2024/5079 (the s.365 application).

1. The second application was an unfair dismissal application lodged at 4:54pm on 1 August 2024. The application was made by the Applicant’s representative filing a Form F2 – Unfair Dismissal Application (Form F2), along with supporting documents. This application was assigned the matter number U2024/8936 (the unfair dismissal application).

1. The Applicant was contacted by the Commission on 6 August 2024 by telephone regarding the concurrent dismissal applications. He stated that he would discuss with his representative which application to discontinue. On 9 August 2024, Mr Hehir was again contacted by the Commission by telephone, as both applications remained open. He once again stated that he would discuss the matter with his solicitor on 12 August 2024 before deciding which application to discontinue. The Applicant was contacted a third time by telephone on 13 August 2024, at which time he was advised he had until close of business that day to discontinue one of the applications before the matter would be referred to me. Mr Hehir again failed to discontinue and both dismissal applications were referred to me for further consideration.

1. On 20 August 2024, I caused correspondence to be sent from my Chambers to the parties. This correspondence identified the two applications made by Mr Hehir and stated that s.725 of the Act prevents multiple applications being made in relation to the same dismissal. In particular, I drew attention to the fact that a second application must not be made. I informed the parties that it was my provisional view that the unfair dismissal application, being the second application, was invalid and had not been made in accordance with the Act. Mr Hehir was invited to provide a response to this provisional view by 12:00pm on 23 August 2024.

1. On 29 August 2024, my Chambers received a voicemail message from the Applicant regarding his applications. Mr Hehir stated that “the [Form] F8 was chosen … but my lawyers said they want to choose the unfair dismissal.” After receiving a return telephone call from my Associate, the Applicant advised that his representative was seeking to clarify whether it was possible to choose which application to proceed with. Mr Hehir followed up this telephone call with an email to my Chambers, writing that on the advice of his solicitor he would prefer to pursue the unfair dismissal application rather than the s.365 application. Whether this advice was provided was disputed by his solicitor in a further email received by my Chambers on the same day, who wrote that they had provided advice on the assumption that the s.365 application had been discontinued.

1. I note that Mr Hehir’s 29 August 2024 telephone calls and email did not address my provisional view as to the validity of the unfair dismissal application pursuant to s.725 of the Act, as requested in my email of 20 August 2024. Furthermore, no response has been received by my Chambers to date.

1. Regarding the unfair dismissal application, s.725 of the Act prevents, in certain circumstances, multiple applications being made in relation to the same dismissal and provides:

“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. Unfair dismissal applications and s.365 applications are applications of the kind referred to in s.725 of the Act. In the scenario before me, Mr Hehir was prevented from making an unfair dismissal application (which is an application “referred” to in s.729) because s.727 applied. This is because when Mr Hehir’s representative lodged the unfair dismissal application at 4:54pm on 1 August 2024, the Applicant had already made the s.365 application and before doing so, the s.365 application had not:

·   Been withdrawn by the Applicant (s.727(1)(b)(i)); or

·   Failed for want of jurisdiction (s.727(1)(b)(ii)); or

· Resulted in the issue of a certificate under s.368(3)(a) (s.727(1)(b)(iii)).

1. On this basis, I am satisfied that this application was not made in accordance with s.725 of the Act. As such, I exercise the power in s.587(1)(a) of the Act to dismiss the unfair dismissal application. An Order[1] to this effect will be issued with this decision. It should be noted that the s.365 application was and remained unaffected, being the first in time and therefore validly made. It was dealt with by private conference and, on 30 August 2024, a certificate was issued pursuant to s.368(3)(a) of the Act.

DEPUTY PRESIDENT

[1] PR778949.

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