Neville Spinks v Origin Education Group Pty. Ltd
[2025] FWC 167
•24 JANUARY 2025
| [2025] FWC 167 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Neville Spinks
v
Origin Education Group Pty. Ltd
(C2024/9451)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 24 JANUARY 2025 |
Application under s.365 of the Fair Work Act 2009 – s.725 enlivened – application dismissed pursuant to s.587(1)(a).
On 23 November 2024, Mr Neville Spinks filed a Form F2 – Unfair Dismissal Application (Form F2) with the Commission. The Form F2 stated that Mr Spinks’ employment with Origin Education Group Pty. Ltd (the Respondent) commenced on 2 September 2020 and that his dismissal took effect on 21 November 2024. This application was given the matter number U2024/14030 (Unfair Dismissal application). On 4 December 2024, the Respondent filed a From F3 – Employer Response, raising the jurisdictional objection that Mr Spinks was not an employee, but an independent contractor. The Respondent outlined that in October 2024, the Respondent had offered Mr Spinks conversion to employment, and should it be found that an employment relationship commenced in October 2024, that such employment ended soon after and did not meet the minimum employment period. Following an unsuccessful staff conciliation, I allocated the Unfair Dismissal application to Commissioner Yilmaz on 18 December 2024.
At 1:02pm on 23 December 2024, Commissioner Yilmaz issued directions and listed the Unfair Dismissal application for determinative conference/hearing on 20 January 2025 (later amended to 23 January 2025).
At 6:08pm on 23 December 2024, Mr Spinks sent email correspondence to Commissioner Yilmaz’s chambers stating:
“I have a hearing on the 20 January 2025 @ 9:00 am and would like to ask for clarity as the conciliation meeting on stated the outline for procedures for ‘unfair dismissal’…
Therefore , as I understand your website, there are two ways I can apply for a hearing, one is for unfair dismissal based on being an employee, and the other is to clarify the fact that I have been unfairly and unknowingly subject to ‘sham’ contracting which has left me vulnerable to unfair working conditions and now just before Christmas, dismissal with wages still owing by Mr Yi Dong of Origin Education Group and no superannuation entitlements. I believed I have subject to employment that has been disguised and now terminated upon. If I could sincerely ask for clarification If my case has been placed into a wrong category for my unfair dismissal for an employee. As the evidence that I have does indeed demonstrate that I have been more likely subject to dismissal based on a unfair contract basis (Sham Contracting Arrangements since 02 September 2020).”
At 7:36pm on 23 December 2024, Mr Spinks filed, with the Commission, a Form F8 – Application to deal with a general protections dispute involving dismissal (Form F8), concerning the same alleged dismissal dispute as the Unfair Dismissal application. The Form F8 was not lodged within the 21-day required timeframe, the reason for the out of time lodgement given by Mr Spinks was that: “Origin Application was made to the Unfair Dismissal claims part of the Commission by failure of an applicant to understand the fair work commission website and no knowledge of the fair work act. Case Number U2024/14030”. Under question 1.6 of the Form F8 – “Has the Applicant started any other claims?” – Mr Spinks answered – “Yes. Unfair dismissal U2024/14030”. The general protections application was given the matter number C2024/9451 and is the subject of this decision (s.365 application).
At 1:17pm on 2 January 2025, Mr Spinks sent email correspondence to the Chambers of Commissioner Yilmaz. Mr Spinks’ email outlined his working relationship with the Respondent and advised that: “As the initial application to Fair Work was under the premise of unlawful termination, it has since been clarified that I was to make application under reasons of 'sham contracting' and that I was unlawfully dismissed under those conditions according to Fair Work Commission's criteria. The new application number is C2024/9451.”
At 3:30pm on 2 January 2025, the Chambers of Commissioner Yilmaz responded to Mr Spinks’ correspondence, acknowledging receipt of Mr Spinks’ email in which he advised that he had filed a general protections application, C2024/9541, and that he intended to pursue that application. Mr Spinks was advised that he had made two dismissal applications and that he could only continue with one. Mr Spinks was advised that should he wish to proceed with his s.365 application, he would need to discontinue the Unfair Dismissal application U2024/14030, at which point he could proceed with his s.365 application. This advice was incorrect. Nonetheless, at 4:41pm, Mr Spinks sent an email to the Chambers of Commissioner Yilmaz, providing context as to why he had lodged multiple dismissal applications, and stating:
“I now address [name removed] the ‘Relief Associate to Commissioner Yilmaz’ with an understanding of the Commission's concern about multiple applications. However, I want to emphasise that my intention was not to abuse the process, but rather to ensure my case was properly heard within the required timeframe through the submission of the proper forms. My subsequent general protections application was made after attempting to contact Alana Spensley Armstrong, realising the true nature of my employment situation. Given these circumstances, I respectfully request that the Commission consider my general protections application as the primary claim, and either consolidate or withdraw the unfair dismissal application. I am seeking the most appropriate avenue to address the sham contracting issue that has come to light. I apologise for any confusion this may have caused and am willing to provide any additional information or clarification the Commission may require to properly assess my case. Thank you for your understanding and consideration in this matter.”
At 5:05pm on 2 January 2025, the Chambers of Commissioner Yilmaz sent reply correspondence to Mr Spinks requesting that he resend his correspondence, copying in the Respondent, should he wish for it to be considered by Commissioner Yilmaz. At 8:56am on 3 January 2025, Mr Spinks emailed correspondence to the Chambers of Commissioner Yilmaz and the Respondent stating:
“I Neville Spinks, hereby give notice of my intention to withdraw my application in the above-mentioned matter. I request that the commission discontinue all proceedings related to case C2024/14030.
I understand that by withdrawing on the matter C2024/14030, the matter will be closed and will allow me to pursue employment rights via the ‘general protections’ application C2024/9451 which has been acknowledged on the 31 December 2024 and will now progress to the next stage.”
At 9:01am on 3 January 2025, the parties were sent correspondence acknowledging Mr Spinks’ withdrawal of the Unfair Dismissal Application and notifying the parties of the closure of the Unfair Dismissal application file. Although Mr Spinks had attributed the matter number C2024/14030 to the Unfair Dismissal application, the chain of correspondence makes clear that his intention was to discontinue matter U2024/14030.
On 6 January 2025, the Commission contacted Mr Spinks on his nominated telephone number. The Commission advised Mr Spinks that his s.365 application is considered invalid, because, at the time of lodgement, he had not yet discontinued the Unfair Dismissal application. Mr Spinks was further advised that should he wish to make a valid s.365 application he could discontinue the current application and refile a new s.365 application, it was explained that any new s.365 application would again be outside of the 21-day timeframe for lodgement, and he would need to seek an extension of time. Mr Spinks requested written correspondence on the issue.
On 7 January 2025, I caused correspondence to be sent from my Chambers to the parties. This correspondence identified the two applications made by Mr Spinks and outlined that s.725 of the Act prohibits the making of multiple applications in relation to the same dismissal and, in particular, that a second application must not be made. The parties were informed that it was my provisional view that the s.365 application, being the second application made, was not a valid application because it had not been made in accordance with the Act. Mr Spinks was invited to advise my Chambers as to his intentions by 3pm on 13 January 2025.
On 10 January 2025, Mr Spinks sent email correspondence to my Chambers, the correspondence went to the merits of Mr Spinks’ case and he did not address the issue of him having made multiple dismissal dispute applications. In reply correspondence, Mr Spinks was advised by my Chambers to:
“Please note the Fair Work Commission (Commission) does not have “discretionary powers” to waive this prohibition. Accordingly, the Commission is not authorised to proceed on the basis you have requested in the attached email.
Despite the above, you still have the opportunity to otherwise outline your intentions by 3.00pm on Monday, 13 January 2025 having regard to the issues raised in the previous email from these Chambers dated 7 January 2025 (set out below).”
To date, Mr Spinks has not further corresponded with the Commission.
Section 725 of the Act prevents, in particular circumstances, multiple applications being made in relation to the same dismissal and 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.”
Unfair dismissal applications and s.365 applications are applications with which s.725 is concerned. Having regard to the factual background, Mr Spinks was prevented from making the s.365 application (an application “referred to” in s.727) because s.729 applied. This is because when Mr Spinks lodged the s.365 application on 23 December 2024, he had already made the Unfair Dismissal application and before doing so, the Unfair Dismissal application had not:
Been withdrawn by him (s.729(1)(b)(i)); or
Failed for want of jurisdiction (s.729(1)(b)(ii)); or
Failed because the Commission was satisfied that the dismissal was a case of genuine redundancy (s.729(1)(b)(iii)).
As such, I am satisfied that the s.365 application was not made in accordance with s.725 of the Act. Section 725 is expressed in mandatory terms. Accordingly, and notwithstanding the fact that Mr Spinks received the incorrect advice referred to in [6] above, I consider that it is appropriate that I exercise the power in s.587(1)(a) of the Act and dismiss it. An Order[1] to this effect will be issued with this decision.
It is open to Mr Spinks to make another s.365 application. Should Mr Spinks wish to do so, he should take note that the 21-day timeframe for lodgement of s.365 applications applies, and, as was the case with the s.365 application C2024/9451, any new s.365 application will be outside this time period, and he will need to seek an extension of time from the Commission.
DEPUTY PRESIDENT
[1] PR783419.
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