Reilly Ellis v East Gippsland Traffic Control Pty Ltd

[2023] FWC 335

[2023] FWC 335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Reilly Ellis

v

East Gippsland Traffic Control Pty Ltd

(U2023/728)

DEPUTY PRESIDENT COLMAN MELBOURNE, 09 FEBRUARY 2023

Unfair dismissal application made contrary to s 725 (multiple applications) – application dismissed under s 587

1. Ms Reilly Ellis has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Her former employer, East Gippsland Traffic Control Pty Ltd (respondent), objects to the application on the basis that it is made contrary to s 725 of the Act. That section prevents multiple applications being made in relation to the same dismissal in particular circumstances. It states:

“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. Applications made under s 394 (unfair dismissals) and s 365 (general protections dismissal applications) are two of the types of application that are referred to ss 726 to 732. Section 727 applies if the relevant person has made a general protections application to the Commission in relation to the dismissal, and that application has not been withdrawn, has not failed for want of jurisdiction, and has not resulted in the issue of certificate under s 368.  Section 729 applies if the person has made an unfair dismissal application in relation to the dismissal, and the application has not been withdrawn and has not failed for want of jurisdiction.

1. On 27 December 2022, Ms Ellis made a general protections application under s 365 of the Act. On 30 January 2023, Ms Ellis made her unfair dismissal application. As of 30 January 2023, s 727 applied to Ms Ellis: she had made a general protections application; that application had not been withdrawn or failed for want of jurisdiction; and it had not, at that stage, resulted in the issue of a certificate by the Commission under s 368.

1. Shortly afterwards, on 2 February 2023, Commissioner McKinnon issued a certificate in relation to Ms Ellis’s general protections application, allowing her to take her complaint to a court. If Ms Ellis had made her unfair dismissal application after the certificate had been issued, s 727 would not have applied to Ms Ellis, and s 725 would not have prohibited her second application. However, the question of whether a second application relating to a dismissal is prohibited by s 725 of the Act is assessed at the time at which it is made, in this case, 30 January 2023.

1. It is clear that on 30 January 2023 Ms Ellis, a person who had been dismissed, made an application of a kind referred to in s 729 (an unfair dismissal application) in relation to her dismissal at a time when s 727 applied. Ms Ellis’s unfair dismissal application was made contrary to s 725. The fact that Commissioner McKinnon later issued a certificate in relation to the s 365 application does affect this conclusion.

1. Section 587(1) states that the Commission may dismiss an application that is ‘not made in accordance with this Act’ (s 587(1)(a)), or one that has ‘no reasonable prospects of success’ (s 587(1)(c)). It is clear that Ms Ellis’s unfair dismissal application was not made in accordance with the Act because it was made contrary to s 725. It is also clear that the application has no reasonable prospects of success because s 725 prohibited the making of the unfair dismissal application. The discretion to dismiss the matter under ss 587(1)(a) and (c) has been enlivened and it is appropriate to exercise it.

1. The respondent also objects to the application on the basis that it was made outside the 21-day period prescribed by s 394 of the Act. Ms Ellis seeks an extension of time. I have considered whether it would be appropriate to determine Ms Ellis’s application for an extension of time before deciding whether to dismiss her unfair dismissal application under s 587 in connection with the operation of s 725. In my view, this would not be an appropriate course. A decision to extend time could not logically affect the application of s 725. An extension of time would not alter the date on which the application was filed. It would extend the time limit from 21 days after the alleged dismissal (28 December 2022) until 30 January 2023 when the unfair dismissal application was in fact made. On that date, s 727 applied to Ms Ellis: she had filed her s 365 application and the Commission had not yet issued a certificate. I note that s 725 is a standing provision. It prohibits certain applications from being made at particular times. Its application is logically antecedent to the question of whether an extension of the 21-day period should be granted.

1. I appreciate that Ms Ellis is aggrieved by the circumstances of her dismissal. However, the effect of s 725 is clear. It prohibited the second application made by Ms Ellis in these particular circumstances. Given my conclusions above, it is not necessary to determine the company’s other jurisdictional objections. Pursuant to s 587(1), Ms Ellis’s application under s 394 of the Act is dismissed.

DEPUTY PRESIDENT
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