Nikhil Bassi v PNR Transport Pty Ltd

[2024] FWC 2888

[2024] FWC 2888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Nikhil Bassi
v

PNR Transport Pty Ltd

(C2024/6957)

DEPUTY PRESIDENT EASTON SYDNEY, 17 OCTOBER 2024

Application to deal with contraventions involving dismissal - Multiple applications - dismissal under s.587(1)(c) at the Commission’s initiative - application is invalid.

1. On 20 September 2024 Mr Nikhil Bassi made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). On 27 September 2024 Mr Bassi made an application under s.365 of the Act. In the second application Mr Bassi alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. Section 725 provides as follows:

“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. Section 725 prohibits the making of multiple applications in relation to the same dismissal. In particular, a second or third application must not be made unless all earlier applications have concluded.

1. A Full Bench of the Fair Work Commission in the matter of Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 said at [30]-[31]:

“[30] It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons). Section 588 of the Act allows an applicant to discontinue an application in accordance with any procedural rules, whether or not the matter has been settled. Rule 10 of the Rules deals with the discontinuance of applications before the Commission by the applicant lodging a notice of discontinuance or giving appropriate notice that, inter alia, the applicant wishes to withdraw the application.

[31] The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act.”

1. If Mr Bassi wants to pursue a general protections claim instead of an unfair dismissal claim he should consider following the course referred to by the Full Bench above:  discontinue both applications and file a new s.365 general protections claim. If he chooses this path Mr Bassi will need to apply for an extension of time to file his general protections claim (see s.366). Alternatively, Mr Bassi might choose to continue with the first unfair dismissal application filed and discontinue the general protections claim.

1. Commission staff spoke to Mr Bassi on 10 October 2024. Mr Bassi was told that his second application was not validly made and he was offered the option to discontinue it. Mr Bassi indicated that his preference was to continue his general protections claim, being his second claim. Continuing the second claim is not an option for Mr Bassi because it was not validly made.

1. Mr Bassi was advised that if he did not discontinue his second application that it might be dismissed.

1. A staff conciliation conference for Mr Bassi’s first application is scheduled for tomorrow. Mr Bassi has not yet discontinued his second application and in my view the status of Mr Bassi’s second application should be resolved before that conciliation conference takes place.

1. Section 587 of the Act provides 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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Mr Bassi’s second application was not made in accordance with the Act and can be dismissed under s.587(1)(a).

1. I am satisfied that Mr Bassi has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his second application under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16]).

1. I order that Mr Bassi’s application be dismissed.

DEPUTY PRESIDENT

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