Stephen Booth v Das Furniture Products

[2014] FWC 1638

[2014] FWC 1638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Stephen Booth
v
DAS Furniture Products
(C2014/2682)

COMMISSIONER WILLIAMS PERTH, 10 MARCH 2014

Application to deal with an unlawful termination dispute.

[1] This decision concerns an application made by Mr Stephen Booth (Mr Booth or the applicant) to deal with an unlawful termination dispute under section 773 of the Fair Work Act 2009 (the Act).

[2] The application was the subject of a conference. The respondent did not participate in the conference. During that conference I raised with the applicant that it appeared from his application that prior to making this application under section 773 of the Act he had made an application regarding the same dismissal to the Western Australian Industrial Relations Commission (the WAIRC). The applicant confirmed this was the case.

[3] I explained to the applicant the potential jurisdictional bar this created and wrote to him accordingly inviting him to make submissions regarding the effect of sections 725, 730 and 732 of the Act which generally are designed to prevent multiple applications being made relating to the same dismissal.

[4] Mr Booth has provided written submissions in response to my invitation. Mr Booth’s submissions generally deal with the merits of the particular circumstances of this case which in his view necessitate both the WAIRC and the Fair Work Commission dealing with particular aspects of his dismissal.

The legislation

[5] The relevant sections of the legislation are set out below:

“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.”

“730  Unlawful termination FWC applications

(1) This section applies if:

(a) an unlawful termination 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(i) been withdrawn by the person who made the application; or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 776(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) This section also applies if:

(a) an unlawful termination 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; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(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); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).

(2) An unlawful termination FWC application is an application under section 773 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.”

Consideration

[6] Mr Booth in his written submissions has confirmed that prior to making this application he had made an application to the WAIRC claiming that he had been unfairly dismissed. Mr Booth’s submissions explain that the WAIRC has in fact already conducted two conferences on his unfair dismissal application and will be convening a third conference on 19 March 2014.

[7] In terms of the legislation above I am therefore satisfied that section 732 of the Act applies because Mr Booth has made an application in relation to his dismissal under a law of the State of Western Australia and this application has not been withdrawn nor has it failed for want of jurisdiction.

[8] I am also satisfied that this application, the subject of this decision, which was made under section 773 of the Act, is an application of the kind referred to in section 730 of the Act.

[9] Consequently I am satisfied that the effect of section 725 of the Act is that Mr Booth is not allowed to make this application.

[10] This application has been made contrary to section 725 of the Act and so cannot proceed and I am obliged to now dismiss this application. An order to that effect will be issued.

COMMISSIONER

Final written submissions:

Applicant, 5 March 2014

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548492>