Khanjan Mirwais v Integrated Facility Solutions (IFS) Pty Ltd T/A IFS

[2016] FWC 1998

[2016] FWC 1998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Khanjan Mirwais
v
Integrated Facility Solutions (IFS) Pty Ltd T/A IFS
(U2016/4282)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal - multiple applications – application dismissed.

[1] On 4 February 2016 Mr Khanjan Mirwais (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Integrated Facility Solutions (IFS) Pty Ltd T/A IFS (IFS or the Respondent) on 3 December 2015 was unfair.

[2] On his Form F2 – Unfair Dismissal Application Mr Mirwais stated that he had made “a complaint to the Human Rights Commission to resolve the discrimination issue …”. Mr Mirwais also provided the name of his case officer at the Australian Human Rights Commission (AHRC) and her telephone number.

[3] On 10 February 2016 a letter was sent by mail to the Applicant. The letter referred to ss.725, 729 and 732 of the Act and explained that he could not proceed with both his AHRC and unfair dismissal applications. The Applicant was asked to advise by close of business on Friday, 26 February 2016 which application he was intended to proceed with, adding that if he intended to proceed with his unfair dismissal that he would need to provide evidence that he had withdrawn the complaint he had lodged with the AHRC. The letter concluded on the basis that if there was no response by that date that it would be assumed that he no longer wished to proceed with his unfair dismissal application.

[4] The letter was returned to the Fair Work Commission (the Commission) with the name and address of the Applicant crossed out, the Commission’s name and mailing address circled and the word “return” written on the envelope.

[5] The Applicant was subsequently called on his mobile phone number on 7 and 10 March 2016 but the number diverted to a voicemail message which said “the person you have called is not available”. A text message was sent on 11 March 2016 asking the Applicant to call my chambers but it was not responded to.

[6] The Act places limitations on the making of multiple applications with respect to the one 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.

...

729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by 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) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair 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.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”

[7] Section 587 of the Act provides:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC 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) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.”

[8] I therefore find that Mr Mirwais made an application or complaint in respect of his dismissal of a kind referred to in s.729 and s.732 of the Act and, in the absence of confirmation that he does not intend to withdraw his AHRC complaint, his unfair dismissal application has not been made in accordance with the Act.

[9] Section 587 of the Act allows the Commission to dismiss an application that is not made in accordance with the Act. An order to that effect will be issued in conjunction with this decision.

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