Mrs Rohini Kumar v Gruma Oceania

[2015] FWC 3230

[2015] FWC 3230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal

Mrs Rohini Kumar
v
Gruma Oceania
(C2015/2506)

DEPUTY PRESIDENT SMITH MELBOURNE, 12 MAY 2015

Jurisdiction—ss.725 and 729.

[1] This matter was listed for Conference on 6 May 2015. The conference was attended by Mr Christopher Spindler, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Mr David McLaughlin, Solicitor on behalf of Gruma Oceania Pty Ltd and Ms Natasha Pahoff, HR Manager on behalf of Gruma Oceania Pty Ltd trading as Mission Foods.

[2] On 8 May 2015 the applicant attended the Registry of the Commission and advised that she was unaware of the listing of the Conference.

[3] The following correspondence was sent to the applicant.

“Dear Ms Kumar,

Deputy President Smith has asked me to advise you that your matter was before him at 10.00 am on 6 May 2015. He now understands that a mistake was made with your email address and that you didn’t receive the notice of listing. He regrets the error by the Administration, however, your nominated representative did get the notice and attended the Conference.

Further, at that Conference your previous employer raised a jurisdictional impediment to proceeding any further. It advised the Deputy President that you made an unfair dismissal claim on 31 March 2015. It was given a number U2015/1452. You discontinued this application on 21 April 2015 by telephone. You lodged the application that was before the Deputy President on 2 April 2015. It was given a number C2015/2506.

Section 725 of the Fair Work Act 2009 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.”

Section 729 provides:

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(i) been withdrawn by the person who made the application; or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.

At the time you made your application which came before the Deputy President, you had not withdrawn your unfair dismissal application.  As a consequence the Act did not allow you to make the application under s.365.

It follows that your previous employers objection was upheld by Deputy President Smith and your matter closed.

Should you have any further questions you should direct them to your representative.

Yours sincerely,

CATHY BARTLETT
Associate to Deputy President Smith”

[4] Given the provisions of the Fair Work Act 2009 (the Act) as outlined in the email sent to Mrs Kumar on 8 May 2015 the Commission is unable to take this matter any further as Ms Kumar was not permitted under the Act to lodge her application.

DEPUTY PRESIDENT

Appearances:

C. Spindler, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

D. McLaughlin, Solicitor with N. Pahoff on behalf of Gruma Oceania Pty Ltd.

Conference details:

2015.

Melbourne:

May; 6.

Printed by authority of the Commonwealth Government Printer

<Price code A,  PR567271>