Omar Bouabdullah v Colonial First State Property Management Pty Ltd T/A CFS Retail Property Trust Group

[2014] FWC 4938

[2014] FWC 4938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Omar Bouabdullah
v
Colonial First State Property Management Pty Ltd T/A CFS Retail Property Trust Group
(C2014/4518)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 23 JULY 2014

Application to deal with contraventions involving dismissal - multiple applications.

[1] This is an application by Mr Omar Bouabdullah (the Applicant) for the Fair Work Commission (the Commission) to deal with contraventions of the general protection provisions under the Fair Work Act 2009 (the Act) involving a dismissal. The application was made on 19 May 2014.

[2] The application was listed for a conference on 24 June 2014. The CFS Retail Property Trust Group (the Respondent) filed the Employer Response on 28 May 2014.

[3] On 20 June 2014 the Applicant emailed my chambers asking if the conference could be rescheduled. My associate responded asking the Applicant to provide the reasons he sought the adjournment and reminding him to copy the Respondent into his emailed response. Nothing was heard from the Applicant and the conference was cancelled on 23 June 2014.

[4] On 9 July 2014 the Respondent’s representative filed an amended Form F8A raising a jurisdictional objection to the Commission dealing with Mr Bouabdullah’s application as he had lodged a complaint with the Australian Human Rights Commission (AHRC) alleging discrimination in relation to his dismissal (amongst other matters) under the Australian Human Rights Commission Act 1986 (Cth).

[5] On 11 July 2014 I wrote to the Applicant. I pointed out that on his application form he had ticked the box “No” to the question “have you made another claim to the Commission or any other organisation regarding your dismissal ...”. My letter set out the relevant section of the Act and explained that he could only proceed with one application. I asked the Applicant to advise me by close of business on Friday, 18 July 2014 which application he was going to proceed with and if he intended to proceed with his application before the Commission that he provide evidence that he had withdrawn the complaint he had lodged with the AHRC. My letter concluded on the basis that if I had not heard from the Applicant by that date that I would assume that he no longer wished to proceed with his application before the Commission.

[6] The Applicant has not responded to my email.

[7] The Act places limitations on the making of multiple applications with respect to the one dismissal:

“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.

...

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) ...

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

...

732 Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

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

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”

[8] I therefore find that Mr Bouabdullah has made an application or complaint in respect of his dismissal of a kind referred to in s.727 and s.732 of the Act. Mr Bouabdullah’s application under s.365 of the Act has not been made in accordance with the Act.

[9] Section 587 of the Act allows the Commission to dismiss an application that is not made in accordance with the Act. An order to that effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR553428>