Ms Kim Morante v Cims Hospitality Pty Ltd
[2023] FWC 3162
•30 NOVEMBER 2023
| [2023] FWC 3162 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Kim Morante
v
CIMS Hospitality Pty Ltd
(C2023/6163)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 30 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal
On 9 October 2023, Ms. Kim Morante (Applicant) filed an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The application alleged that the Applicant’s employment had been terminated by CIMS Hospitality Pty Ltd (Respondent) in contravention of Part 3-1, General Protections, of the Act on 20 September 2023.
In its response to the application dated 25 October 2023, the Respondent initially raised a number of jurisdictional objections to the application. Amongst these was an objection that the Applicant had made another application dealing with the dismissal. On 4 November 2023, the Respondent advised the Commission that it no longer pressed the jurisdictional objections that it had raised.
At an initial conference on 13 November 2023, the Commission raised a question as to whether the operation of Division 3 of Part 6-1, Multiple Actions, of the Act posed an obstacle to the matter proceeding any further. The parties were given an opportunity to file material to deal with that issue. For the reasons that follow, I have concluded that Division 3 of Part 6-1 of the Act prevents the Applicant from bringing the present application.
Background and Submissions
On 25 September 2023, the Applicant filed an application for an unfair dismissal remedy under s.394 of the Act against the Respondent. The application was referred to Commissioner Bissett for determination. On 5 October 2023, the Commissioner advised the Applicant that, on the basis of the information available, the Commission’s preliminary view was that the Applicant had not been engaged for the minimum employment period and that as a consequence, the application for unfair dismissal had no reasonable prospect of success. The Applicant was required to file submissions addressing that issue by 12 October 2023. No further submissions were received from the Applicant.
On 13 October 2023, the Commission dismissed the Applicant’s unfair dismissal application under s.587(1)(c) of the Act on the basis that the Applicant had not completed the minimum employment period and the application therefore had no reasonable prospects of success.[1]
In the current proceeding the Applicant said that she had received a telephone call from the Commission on 4 October 2023 about the unfair dismissal application during which she was told that “the case was not within the time limits to continue.” The Applicant said that she understood that the unfair dismissal case was closed at that point. The Applicant also said that she was conscious that there was a 21-day time limit in which to lodge an application under s.365 of the Act. She said that this had motivated her to lodge an application under that section on 9 October 2023, before that time limit had expired.
The Respondent ultimately submitted that the general protections claim was made at the time the unfair dismissal proceeding was in progress and that it was ‘not valid with the timelines of her claims’.
Legislation
Section 725 of the Act provides:
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.
This section is the key operative provision that restricts multiple applications relating to dismissal from employment being made under specified provisions of the Act. One such restriction is on the filing of a general protections application in circumstances where an unfair dismissal application has also been made. Sections 727 and 729, in combination with s.725, deal with this situation.
727 General protections FWC applications
(1) This section applies if:
(a) a general protections FWC application has been made by, or on behalf of, 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) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
(1A) This section also applies if:
(a) a general protections FWC application has been made by, or on behalf of, 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; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).
(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.
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.
Consideration and Disposition
In this case, it is not in issue that at the time the general protections application was made by the Applicant on 9 October 2023 in relation to the Applicant’s dismissal by the Respondent, there was an unfair dismissal application which had been made by the Applicant relating to the same dismissal. That unfair dismissal application had not, at that time, been withdrawn or failed for any of the reasons mentioned in s.729(1)(b)(i)–(iii). In those circumstances, s.725 prevents the general protections application from being made. The Commission is unable to deal with the dispute any further because of the operation of those provisions.
It may be that the Applicant misunderstood the status of the unfair dismissal proceeding at the time the s.365 application was made. Had she appreciated that the matter had not been dealt with to finality she may have taken steps to withdraw the first application before filing the second. It is also clear that the Applicant filed the application when she did to avoid any issue associated with the 21-day time limit in s.366. However, the circumstances here fall squarely within Division 3 of Part 6-1 and the operation of those provisions cannot be overcome by those considerations.
The application is dismissed. An order to that effect will issue separately.
DEPUTY PRESIDENT
[1] [2023] FWC 2672.
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