Mr K v The Employer

[2023] FWC 456

[2023] FWC 456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections
s.589—Procedural and interim decisions

Mr K
v

The Employer

(C2023/940 & ADM2023/3)

COMMISSIONER BISSETT MELBOURNE, 27 FEBRUARY 2023

Application to deal with contraventions involving dismissal – application dismissed – application for interim orders – application dismissed.

1. This decision concerns two applications made by Mr K (the Applicant) in relation to the termination of his employment with the Employer (the Respondent) in December 2020. The first application was made on 5 February 2023 pursuant to s.365 of the Fair Work Act 2009 (FW Act) in which the Applicant asks the Commission to deal with a dispute in relation to a breach of the general protections provisions involving dismissal of the FW Act. The second application, apparently made pursuant to s.589 of the FW Act, requests the Commission issue interim orders requiring that he be reinstated to his previous employment, presumably pending the finalisation of the s.365 application.

1. These applications represent respectively Mr K’s 25^th and 26^th applications to the Commission since his dismissal by the Respondent in December 2020. Eight previous unfair dismissal applications have been dismissed by the Commission as have numerous dispute and various other applications. The unfair dismissal applications have been dismissed because the Applicant had settled his first unfair dismissal application by the making of binding settlement agreement with the Respondent – this having been found in subsequent decisions of the Commission. Other applications have been dismissed generally because the Commission does not have jurisdiction to deal with the application (for example because the Applicant was not an employee of the Respondent at the time the application was made).

1. Section 725 of the FW Act establishes a general rule in relation to applications relating to dismissal. It states that a person must not make an application of the kind referred to in s.726-s.732 if any of the other sections apply.

1. Section 729 deals with applications in relation to unfair dismissal. Section 727 of the FW Act deals with General protections applications.

1. Section 729 applies if a person has made an unfair dismissal application and the application has not been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy. The Applicant’s first unfair dismissal application was not withdrawn or failed for want or jurisdiction or because the dismissal was a genuine redundancy. That application was dismissed by decision of the Commission because the Applicant had entered into a binding settlement agreement. The dismissal decision was upheld by a Full Bench of the Commission.

1. The effect of s.725 of the FW Act (the general rule) is that the Applicant is barred from making a general protections application because s.729 (in relation to unfair dismissal applications) applies to him.

1. I would also observe that the general protections application has been made over 2 years outside the 21 day statutory time limit established in s.366 of the FW Act.

1. Given my decision in relation to the s.365 application there is no matter before the Commission to which an interim order could attach. Further, the interim order sought by the Applicant has been considered in his unfair dismissal application – that application having been dismissed. The application for an interim order therefore has no reasonable prospect of success and is therefore dismissed pursuant to s.587(1)(c) of the FW Act.

1. For reasons previously given in multiple matters I maintain the anonymity of the Applicant and Respondent in this matter.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR751123>