Patricia Utai v Melton City Council
[2025] FWC 141
•17 JANUARY 2025
| [2025] FWC 141 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Patricia Utai
v
Melton City Council
(C2024/9465)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 17 JANUARY 2025 |
Application under s.365 of the Fair Work Act 2009 – s.725 enlivened – application dismissed pursuant to s.587(1)(a).
On 16 December 2024, Ms Patricia Utai’s nominated representative filed a Form F2 – Unfair Dismissal Application (Form F2) with the Commission. The Form F2 stated that Ms Utai’s employment with Melton City Council (the Respondent) commenced on 30 March 2023 and that her dismissal took effect on 2 December 2024. This application was given the matter number U2024/15142 (the Unfair Dismissal application). On 19 December 2024, the Unfair Dismissal application was listed for a telephone staff conciliation on 17 January 2025.
On 23 December 2024, Ms Utai filed a Form F8 – Application to deal with a general protections dispute involving dismissal (Form F8) with the Commission as an unrepresented applicant, concerning the same dismissal dispute as the Unfair Dismissal application. Under question 1.6 of the Form F8 – “Has the Applicant started any other claims?” – Ms Utai answered – “Yes. Unfair dismissal has been lodged by a third party (AUSTRALIAN DISMISSAL SERVICES in association with LAW ON LYDIARD)”. This application was given the matter number C2024/9465 (the s.365 application).
On both 6 and 8 January 2025, the Commission attempted to contact Ms Utai on her nominated telephone number. The Commission’s calls were not answered and on both occasion voicemail messages were left requesting that Ms Utai contact the Commission.
On 9 January 2025, I caused correspondence to be sent from my Chambers to the parties. This correspondence identified the two applications made by Ms Utai 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. Mrs Lynch was invited to advise my Chambers as to her intentions by 3pm on 13 January 2025. Later that day, the Respondent sent an email to my Chambers, stating: “Patricia Utai signed a settlement agreement in December and I believe this was sent through to FWC. I have attached documentation.” The email did not contain an attached document.
On 10 January 2025, Ms Utai’s nominated representative for her Unfair Dismissal application filed a Form F50 – Notice of Discontinuance (Form F50), copying in both the Respondent and Ms Utai in the correspondence. The Form F50 indicated that Ms Utai was wholly discontinuing her Unfair Dismissal application as part of a settlement agreement. The staff conciliation for Ms Utai’s Unfair Dismissal matter was vacated and the Commission’s file was closed.
On 13 January 2025, the Respondent left a voicemail message with my Chambers, requesting an update on the matter and noting that the matter was settled in December. On 16 January 2025 the Respondent sent email correspondence to my Chambers stating: “…I understand that C No. 15142 Unfair Dismissal has been discontinued. This claim was settled with an agreement and I am waiting to hear on the status of C2024/9465. We have a signed agreement (attached) where Clause 11 discharges the applicant of all claims, actions and liabilities…”.
To date, Ms Utai has not responded to the Commission’s multiple attempts to contact her nor to the correspondence from my Chambers requesting that she provide advice as to her intentions.
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, Ms Utai was prevented from making the s.365 application (an application “referred to” in s.727) because s.729 applied. This is because when Ms Utai lodged the s.365 application on 23 December 2024, she had already made the unfair dismissal application and before doing so, that unfair dismissal application had not:
Been withdrawn by her (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 and that it is appropriate that I exercise the power in s.587(1)(a) of the Act to finalise matters between the parties and dismiss it. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR783312.
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