Philip Cutler v BTI Pty Ltd T/A Skybus Coach Service
[2011] FWA 45
•5 JANUARY 2011
[2011] FWA 45 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Philip Cutler
v
BTI Pty Ltd T/A Skybus Coach Service
(C2010/5375)
COMMISSIONER BISSETT | MELBOURNE, 5 JANUARY 2011 |
Application to deal with contraventions involving dismissal.
[1] This is an application by Mr Philip Cutler for Fair Work Australia to deal with a contraventions of the general protection provisions under the Fair Work Act 2009 (the Act) involving a dismissal. The application was made on 27 October 2010. Mr Cutler also lodged an application under s.773 of the Act at around the same time.
[2] As is required by the Act upon receipt of the application the matter was listed for a conciliation conference before me on 16 November 2010. At this time Mr Cutler discontinued his application under s.773 of the Act.
[3] At the conference it became clear that Mr Cutler also had made an application to the Magistrate’s Court of Victoria with respect to his dismissal. I understand this application was made in September 2010. Mr Cutler did not dispute that he had made such an application.
[4] 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 FWA applications
(1) This section applies if:
(a) a general protections FWA 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(i) been withdrawn by the person who made the application; or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 section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.
...
730 Unlawful termination FWA applications
(1) This section applies if:
(a) an unlawful termination FWA 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(i) been withdrawn by the person who made the application; or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 section 777 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) An unlawful termination FWA application is an application under section 773 for FWA 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.
[5] Following discussions between the parties it was agreed that Mr Cutler would advise my associate if he wished to proceed with the application subject to this decision. No such advice was received. Subsequently I wrote to Mr Cutler advising him that, under s.725 of the Act, he could not maintain a general protections application under s.365 of the Act whilst he had a court application dealing with the same matter and seeking any submissions he may have to make as to why I should not dismiss his application under s.365. Mr Cutler failed to respond in the time period allowed.
[6] I therefore find that Mr Cutler’s application under s.365 of the Act is in breach of the provisions of s.725 of the Act and hence has not been made in accordance with the Act. Mr Cutler has an active application in the Magistrate’s Court dealing with his dismissal. He therefore cannot make an application under s.365 of the Act.
[7] Section 587 of the Act allows me to dismiss an application that is not made in accordance with the Act.
[8] Mr Cutler’s application under s.365 of the Act is therefore dismissed. Had it not been discontinued I would also have dismissed Mr Cutler’s s.773 application.
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