Soledad Degendorfer v Australian Skin Clinics Knox Pty Ltd

[2025] FWC 1007

[2025] FWC 1007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Soledad Degendorfer
v

Australian Skin Clinics Knox Pty Ltd

(C2025/1807)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 14 MAY 2025

Application under s.365 of the Fair Work Act 2009 – s.725 enlivened – application dismissed pursuant to s.587(1)(a).

Background

1. This decision deals with whether Ms Degendorfer’s general protections application under s365 of the Act can proceed in light of s725 of the Act which prevents the making of multiple applications in relation to the same dismissal.

1. Section 725 provides that:

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 729 refers to unfair dismissal applications, s.727 refers to general protections applications to the Commission, and s730 refers to unlawful termination applications to the Commission. Section 729 applies if the person has made an unfair dismissal application in relation to the dismissal, and the application has not been withdrawn, failed for want of jurisdiction, or failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.   In other words, s725 operates to preclude an applicant from bringing a general protections application while an unfair dismissal application concerning the same dismissal is before the Commission.

1. Ms Degendorfer was employed as a Clinic Manager at a skin care clinic from approximately August 2022.  She was employed by Shariff Investments Pty Ltd. Whilst there is considerable controversy about precisely what occurred between around 31 January – 3 February 2025, it is clear that Shariff ceased operating the clinic and it came to be operated by Australian Skin Clinics Knox Pty Ltd (ASCK).

1. On 12 February 2025 Ms Soledad Degendorfer made an unfair dismissal application against ASCK under s.394 of the Act (U2025/1630). A week later, on 19 February 2025, she made an application under s773 of the Act to deal with an unlawful termination dispute (C2025/1185). This application was withdrawn on 4 March 2025. On 6 March 2025, Ms Degendorfer made a general protections involving dismissal application against ASCK under s.365 of the Act (C2025/1807).

1. Separately, Ms Degendorfer made an application against Shariff, which was discontinued after Shariff went into liquidation.

1. On 25 March 2025, Ms Degendorfer was advised that s725 of the Act prohibits the making of multiple applications in relation to the same dismissal. She was advised that my provisional view was that that the general protections application, being the second application made, was not a valid application because it had not been made in accordance with the Act. Later that day Ms Degendorfer’s representative and spouse, Mr Dupont, advised that she was willing to withdraw her unfair dismissal application “on the express condition precedent that the Commission grants leave for this application to be replaced by the General Protections (Dismissal) Application”.

1. On 26 March 2025, my Chambers replied to Mr Dupont, informing him that he had not identified any power upon which the Commission can and should combine or replace the unfair dismissal application with the general protections application, and that there is no general power to do so where an applicant has made one type of application and subsequently decides to make a different application.[1] Later that day, Mr Dupont replied stating:

“As mentioned earlier, s.725 of the Fair Work Act 2009 (Cth) prohibits multiple applications in relation to the same dismissal.

However, the Explanatory Memorandum and case law (such as Bowker v DP World Melbourne Ltd) make clear that withdrawing one application before it is determined can preserve the right to pursue the alternative claim, as long as:

1.   The first claim is withdrawn before determination; and

2.   The second claim in this instance being the General Protections (Dismissal) Application (C2025/1807) claim is allowed by the Commission when considering the said Explanatory Memorandum.

3.   For the FWC to allow the General Protections (Dismissal) Application (C2025/1807) to replace the Unfair Dismissal Application (U2025/1630) claim the applicant seeks leave from the Commission for extension of time for lodgement of (C2025/1807).

Again, the applicant confirms pursuant to Rule 10 of the Fair Work Commission Rules 2013, the Applicant is willing to withdraw her Unfair Dismissal Application (U2025/1630) on the express condition precedent that the Commission grants leave for this application to be replaced by the General Protections (Dismissal) Application (C2025/1807)…”

1. A listing for a case management conference was vacated due to party unavailability and, on 27 March 2025, Ms Degendorfer was directed to file any submissions or evidence as to why her general protections application should not be dismissed because it is precluded by s.725 of the Act.

1. On 3 April 2025 Mr Dupont filed submissions as directed.  They largely went to the merits of the dismissal, however they included a submission that the Act allows an employee to bring claims under multiple parts of the Act “where the factual matrix overlaps but the legal rights and remedies sought are distinct.” Four cases were provided in support:

• Bowker v DP World Melbourne Ltd [2014] FCAFC 117
• Singh v Aerocare Pty Ltd [2016] FCA 284
• Bayford v Maxxia Pty Ltd[2011] FWA 5675
• Gong v Yihong Developments Pty Ltd [2017] FCCA 2350.

1. On 4 April 2025, Mr Dupont was asked to provide links or copies of the decisions he referred to, as they could not be located through database searches. Mr Dupont was also asked to advise whether Ms Degendorfer agreed that the matter be determined on the papers or whether he wished to make any further oral submissions at a formal hearing in relation to the issue.

1. On 8 April 2025, Mr Dupont again submitted that the two applications should be heard concurrently “as both arise from the same sequence of events, conduct, and employment context. Allowing matters to be heard separately would create an artificial division of facts and issues, lead to unnecessary duplication, and risk an inconsistent outcome… It would be procedurally and legally unjust for the Commission to dismiss or delay the General Protections matter in favour of the unfair dismissal claim, especially where the General Protections claim responds directly to matters raised by the Respondent after the application was filed”.

1. Mr Dupont also provided revised references to the Bowker, Singh and Bayford decisions and referred to the relevance of the authorities as:

• “Bowker v DP World Melbourne Ltd[2014] FWCFB 9227 – clarified jurisdictional flexibility in handling overlapping workplace conduct claims.

  This case addresses applications for orders to stop workplace bullying and examines the definition of being 'at work' in the context of bullying conduct [link].

• Singh v Aerocare Pty Ltd[2016] FWC 6186 – emphasised that substance and factual basis are determinative of jurisdiction, not technical labels.

  This decision involves the dismissal of an employee over Facebook posts and discusses the implications of social media conduct on employment.​

• Bayford v Maxxia Pty Ltd [2011] FMCA 202 – confirmed employment may exist based on conduct and treatment by employer.

  This case examines the dismissal of an employee for poor performance and tardiness, and considers claims of adverse action related to family responsibilities [link].  

• Gong v Yihong Developments Pty Ltd [2017] FCCA 2350 – cessation of duties after transfer of control can constitute dismissal.

• Sibanda v Optus[2021] FWC 84 – upheld concurrent hearing of matters to ensure just and efficient resolution of related workplace claims.”

1. Mr Dupont subsequently provided further information about the authorities Ms Degendorfer relies upon:

• “Bowker v DP World Melbourne Ltd[2014] FWCFB 9227

  The Full Bench held that where a set of facts gives rise to both an unfair dismissal and general protections claim, concurrent proceedings may continue if they relate to distinct statutory protections.

• Singh v Aerocare Pty Ltd[2016] FWC 6186

  Allegations of discrimination and unfair dismissal, though arising from the same termination event, involved distinct legal tests and were allowed to proceed concurrently.

• Bayford v Maxxia Pty Ltd [2011] FMCA 202

  The Commission distinguished the general protections claim from the unfair dismissal claim and confirmed that they could proceed concurrently, as they involved different statutory protections.”

1. Amended citations for Gong and Sibanda were also provided. However, neither decision appears to exist.

1. Following a separate hearing in relation to the unfair dismissal application, Mr Dupont raised 5 new authorities (with no links) in support of his submissions on behalf of Ms Degendorfer. Two of these related to the s725 issue concerning the general protections application:

• “Construction Forestry Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

  Summary: The High Court confirmed that general protections (adverse action) claims are distinct from unfair dismissal claims and both may arise from a common set of facts without procedural conflict.

• Ponce v DJT Staff Management Services Pty Ltd [2010] FWAFB 5707

  Summary: The Full Bench of the FWC held that concurrent unfair dismissal and general protections claims are permissible if they arise from distinct statutory rights, even where the facts overlap.”

1. The decision in Ponce does not appear to exist.

1. In response to further enquiry form my chambers, on 9 April 2025 Mr Dupont advised that Ms Degendorfer was content for the matter to be determined on the papers submitted.

Consideration

1. The Full Bench in Ioannou v Northern Belting Services[2] makes it clear that when an applicant lodges an application of one type and then decides that a different type of application is more appropriate, the appropriate action to take is to withdraw the first application and file the preferred type of application.

1. In Ms Degendorfer’s case, the unfair dismissal application is progressing.  A hearing to deal with jurisdictional objections raised by AKSC has been heard, and a decision reserved.

1. I have considered the submissions and authorities provided by Mr Dupont and I am not satisfied that he has identified a power under which the Commission can combine or replace an unfair dismissal application with a general protections application involving dismissal, nor has he addressed s.725 of the Act.

1. None of the cases referred to by Mr Dupont deal with section 725 of the Act, nor do they establish any power for the Commission to combine or replace an application of one type with another.  The ‘summaries’ of the decisions Mr Dupont provided are inaccurate.

1. The Full Bench in Bowker considered the legal meaning of the expression ‘while the worker is at work’ and whether certain allegations in an application for orders to stop workplace bullying should be struck out. At no point did the Full Bench make the statement attributed to it by Mr Dupont, that “It would be contrary to the legislative scheme of the Act to prevent a party from pursuing a general protections application simply because a related application concerning bullying or dismissal had been lodged.’ The decision is not relevant to the issue concerning s725.  In fact, neither do the Singh and Bayford decisions comment on any power of the Commission to combine or replace an application of one type with another, nor do they in any way comment on s725 of the Act.

1. In Singh the Commission found that the applicant had been unfairly dismissed and ordered compensation. It makes no reference to and has no relevance to s725.  Bayford was a decision of Federal Magistrate Riley determining an application that adverse action in contravention of the general protections had been taken for two separate prohibited reasons.  It has no bearing whatsoever on the application of s725 of the Act.  As to the decision of the High Court of Australia in CFMEU v BHP, that decision dealt with whether adverse action in the form of dismissal had been taken for a prohibited reason. 

1. It is uncontroversial that general protections claims are distinct from unfair dismissal claims, and both may rise from a common set of facts, however the High Court said nothing about both types of applications being able to run concurrently or in combination.  It is because of this that an applicant must elect whether to make an unfair dismissal application or a general protections application. However, section 725 provides that they cannot make both concurrently.

1. Mr Dupont has not provided correct citations for Gong, Sibanda and Ponce and it appears they do not exist.

1. I am not persuaded by Ms Degendorfer’s submissions that s725 does not apply in this case.  The Commission does not have the power to combine or replace Ms Degendorfer’s unfair dismissal application with her general protections application, in the way requested by her representative.

1. As at 6 March 2025, when Ms Degendorfer made the general protections application, she had made an unfair dismissal application.  That application had not been withdrawn, failed for want of jurisdiction, or failed because the FWC found the dismissal to be a case of genuine redundancy.  Ms Degendorfer was therefore prevented by s725 from making the general protections application.

1. I am satisfied that the general protections application (C2025/1807) 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 dismiss it. I make the following order:

1. The application under s.365 of the Fair Work Act 2009 made by Ms Soledad Degendorfer on 6 March 2025 is dismissed.

1. This decision does not impact Ms Degendorfer’s unfair dismissal application, which has been heard and a decision reserved.

DEPUTY PRESIDENT

[1] Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660.

[2] Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660.

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