Mr K v The Employer

[2022] FWC 3085

[2022] FWC 3085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Mr K
v

The Employer

(C2022/7513)

COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2022

Application to deal with an unlawful termination dispute

1. On 14 November 2022 Mr K (the Applicant) made an application pursuant to s.773 of the Fair Work Act 2009 (FW Act) in relation to his employment by The Employer (the Respondent). The Applicant says that he “was made unemployed…for “being disruptive” after [the Respondent] had repeatedly committed fraud in order to facilitate making me unemployed”. He believes his “employment was ended because [the Respondent] was committing a serious and genuine crime, and that if they force the desired “Deed Poll” onto me through the commission, it would then help them conceal their evidence and get immunity for their criminal activities.” The Applicant says he is “seeking a hearing about why this matter was mishandled…”and “an immediate order for re-instatement…”

1. The Applicant was employed by the Respondent until the termination of his employment on 20 December 2020.

1. In earlier decisions of the Commission involving the Applicant and Respondent the identity of both have not been disclosed. The Respondent has sought, and I am satisfied, that this should continue.

THE APPLICATION

1. On 17 November 2022 I sent correspondence to the Applicant in which I raised a number of issues, including potential MATTERS in relation to the application. That correspondence said, in part:

Prior to this application you have…made 5 applications (unfair dismissal applications) in relation to your dismissal along with at least 9 miscellaneous application and 3 appeals. You have previously made an unlawful termination application which you withdrew after it was explained to you that it was unable to proceed.

Section 729 of the FW Act prohibits you from making an application under the general protection provisions (and other provisions) where you have already made an application under the unfair dismissal provisions and that has not…failed for want of jurisdiction or been withdrawn. In your case your unfair dismissal application was dismissed because you were found to have made a binding agreement to settle your case.

Further, section 723 of the…FW Act states that you must not make an unlawful termination application in relation to your dismissal if you are able to make a general protections application.

The Respondent to your application is a national system employer. That means that you are able to make a general protections application (this should not be taken to mean such an application would necessarily be successful for the reasons given above in relation to section 729 of the FW Act).

In the circumstances where you do not appear to be eligible to make an unlawful termination application (and noting that you are barred from making a general protections application because your unfair dismissal application has been determined) it is Commissioner Bissett’s preliminary view that you application should be dismissed as it is not within the power (jurisdiction) of the Commission to deal with the application.

Should you wish to make any submissions on the preliminary view of the Commissioner or her assessment as to the application of s.723 and/or s.729 of the FW Act you must file such submissions in writing by 4.00pm Thursday 24 November 2022.[1]

SUBMISSIONS

1. On 17 November 2022, in response to the matters raised with him, the Applicant said that the Commission should set aside the preliminary views expressed as no “binding settlement agreement” was reached between him and the Respondent.

1. The Applicant also says that he has proceedings in the Federal Court in relation to the question of whether a binding settlement agreement was reached.

1. In further submissions filed on 21 November 2022 the Applicant submits that:

·     He had no agreement to be treated the way he had been and to be “forced out of his job”

·     Because the matter had not settled the Commission should cease “pretending” a verbal settlement agreement had been reached

·     He seeks immediate re-instatement

·     He seeks back pay

CONSIDERATION

1. While I note the matters raised by the Applicant, he has failed to deal with the two critical matters that were raised in correspondence with him – firstly that s.729 prohibits him making an application pursuant to s.773 of the FW Act when he has already had a matter dealt in relation to his dismissal by the Respondent pursuant to s.394 of the FW Act, and secondly that s.723 prohibits an application being made pursuant to s.773 if an application can be made pursuant to the general protections provisions of the FW Act.

1. On the first matter, s.725 of the FW Act sets out the general rule in relation to multiple applications:

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.

1. Section729 of the FW Act states as follows:

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.

1. The Applicant has made a number of applications in relation to his dismissal by the Respondent. The first of these was made on 9 January 2021. That application was dismissed by a decision of the Commission on 19 April 2021[2] on the grounds that, as a binding settlement agreement having been reached between the parties in conciliation, the application had no reasonable prospect of success.[3] The details of the settlement agreement as recorded and transcribed is detailed in the decision.[4]

1. The Applicant appealed this decision on 4 May 2021 and again on 6 July 2021 but was unsuccessful, the Full Bench finding no error in the decision at first instance.[5]

1. Given these circumstances it can be concluded that the Applicant has made an application for unfair dismissal in relation to the dismissal for which he now makes his application under s.773 of the FW Act. The unfair dismissal application was not withdrawn, did not fail for want of jurisdiction and did not fail because the Commission was satisfied that the dismissal was a case of genuine redundancy.

1. By virtue of the operation of s.725 of the FW Act, having made an application pursuant to s.394, the Applicant is barred from making an application pursuant to s.773 of the FW Act. The application currently before the Commission is therefore not made in accordance with The FW Act.

1. To deal with the second matter, section 723 of the FW Act states:

723      Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

1. The general protections provisions to which s.723 of the FW Act refers are found in Part 3-1 of the FW Act. Section 335 provides that, in Part 3-1, employee and employer have their ordinary meaning. Part 3-1 applies to action taken by a constitutionally-covered entity. A constitutionally-covered entity includes a constitutional corporation (s.338(2) of FW Act).

1. I accept that the Respondent in the matter currently before me is a constitutional corporation. It is a large employer with employees in every State and Territory and buys and sells products. It is, without doubt, a constitutional corporation.

1. The test is not whether such an application would succeed or fail, just that the person “is entitled to make” a general protections court application. The entitlement to make a general protections court application only arises if an application is made pursuant to s.365 of the FW Act. As the Respondent is a constitutionally-covered entity the Applicant is entitled to make an application in relation to the Respondent’s conduct. The Applicant has not made such an application to the Commission even though he is entitled to do so. For this reason the Applicant cannot make an application pursuant to s.773 of the FW Act. His application has therefore not been made in accordance with the FW Act.

1. In concluding I make no comment as to the success or otherwise of such an application but would note that my comments above in relation to multiple applications would inevitably apply to any further application in relation to the dismissal if it was made.

1. A final observation needs to be made in respect to the s.773 application made by the Applicant. Even if he could overcome the two matters above, section 774 of the FW Act requires that such an application be made within 21 days of the date of the dismissal although this time period may be extended by the Commission taking into account the matters set out in s.774(2) of the FW Act. The application is almost two years out of time. Ultimately, for the reasons given above this matter does not need to be determined. I would observe, however, that given my knowledge of the history of applications made by the Applicant, the circumstances of the matter are unlikely to create exceptional circumstances such that an extension of time would be granted to the Applicant for making the application.

FEDERAL COURT PROCEEDINGS

1. The Applicant has indicated in his submissions that he has current proceedings in the Federal Court. These proceedings seek that the decision (presumably that in which his application for unfair dismissal was originally dismissed) and agreement he reached at conciliation be quashed and the matter be remitted to the Commission.

1. It is not apparent that any decision has been issued in the Federal Court proceedings. It is not otherwise within the power of the Commission to quash the decision of the Full Bench or to set aside the agreement reached by the Applicant.

1. If the Applicant succeeds in his Federal Court proceedings that may shed a different light on what he may or may not be able to prosecute in the Commission. Absent any decision from the Federal Court there is nothing to be done with this application except dismiss it.

CONCLUSION

1. Section 587 of the FW Act states 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.

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.

1. Beyond the restrictions imposed by s.587(2) of the FW Act, the Commission is not otherwise constrained in the reasons why it may dismiss an application made pursuant to s.773 of the FW Act.

1. I am satisfied that the Applicant’s application has not been made in accordance with the FW Act. The application is contrary to the limitations imposed in s.723 of the FW Act and in s.725 and s.729 of the FW Act and is therefore dismissed.

COMMISSIONER

[1] The history of application by the Applicant can be found in Mr K v The Employer [2021] FWC 6380 and Mr K v The Employer[2022] FWC 167, K v The Employer[2022] FWC 1592 and Mr K v The Employer [2022] FWC 3003

[2] Mr K v The Employer[2021] FWC 2132

[3] Ibid, [25]

[4] Ibid, [12]

[5] Mr K v The Employer [2021] FWCFB 3162.

Printed by authority of the Commonwealth Government Printer

<PR748142>