Stephen McLeod v The Trustee for the Twa Trust T/A TYRES4U Pty Ltd

[2019] FWC 2635

[2019] FWC 2635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen McLeod
v
The Trustee for THE TWA TRUST T/A TYRES4U Pty Ltd
(U2019/893)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 29 January 2019, Mr Stephen McLeod filed an application with the Fair Work Commission (the Commission) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr McLeod’s application was filed on his behalf by his legal representative, Ms Nikolovska of Unfair Dismissals Direct (UDD).

[2] A conciliation scheduled for 28 February 2019 did not proceed as it became apparent that Mr McLeod had lodged two separate unfair dismissal applications against his former employer. The Commission’s records indicate that an earlier unfair dismissal application was lodged on 24 January 2019 (First Application) by Mr Gary Pinchen of A Whole New Approach. The First Application was given the matter number U2019/764. By the time of the conciliation scheduled for 28 February 2019, Mr Pinchen had formally ceased to act for Mr McLeod in the First Application.

[3] In the First Application, Mr McLeod stated that he was notified of his dismissal by Latitude Finance Australia T/A Tyreright Hastings (ABN 60 455 036 246) on 7 January 2019, and that the dismissal took effect on 8 January 2019. In this current application (Second Application), Mr McLeod stated that his employment had been terminated by The Trustee for THE TWA TRUST T/A TYRES4U Pty Ltd (ABN 42008583588) on 7 January 2019. Despite two different entities being named, both applications nominated the same contact person and contact details for what was described as the respondent entity. Having been lodged on 29 January 2019, the Second Application was also lodged one day out of time.

[4] The Commission file indicates that in a discussion with the Commission conciliator on 28 February 2019, Mr McLeod said that he did not wish to proceed with either the First Application or the Second Application due to the cost of being legally represented. The file note recording this conversation indicated that Mr McLeod terminated the telephone call shortly after saying this and could not be contacted again that day.

[5] On 4 March 2019, the Commission attempted to telephone Mr McLeod but he could not be reached, so a voicemail message was left.

[6] On 13 March 2019, the Commission telephoned Mr McLeod in relation to his two unfair dismissal applications. Mr McLeod advised the Commission that he was confused about what was going on but that he was currently in an appointment and would call back in an hour. However, Mr McLeod did not do so.

[7] On 22 March 2019, the Commission again attempted to telephone Mr McLeod but was unable to reach him, and a voicemail message was left.

[8] On 26 March 2019, the Commission sent Mr McLeod the following email:

“As discussed over the phone, you currently have two unfair dismissal applications open - U2019/764 and U2019/893.

The second one (U2019/893) was lodged out of time (at 22 days).

The Fair Work Act only allows for one application to be made for the same dismissal.

To close the out of time matter (U2019/893) you can sign and date the form F50 below. Then reply to this email with the signed and dated form.

Then we can keep your other application open (U2019/764) and list it for a hearing.

However, we have tried to contact you to confirm whether you want to withdraw both your applications.

Please confirm by noon on Friday 5 March 2019 if you want to continue or withdraw your unfair dismissal application.”

[9] The Commission sent a follow up email shortly after this seeking Mr McLeod confirm by noon on Friday 5 April 2019 whether he wished to continue or withdraw the Second Application.

[10] To date, Mr McLeod has not responded to the Commission’s correspondence, nor has he advised whether he wished to discontinue the Second Application.

[11] Section 725 of the Act provides:

“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.”

[12] Section 729 deals with unfair dismissal applications:

“729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by 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) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[13] These provisions, in the context of this matter, interact in the following manner:

Mr McLeod lodged the First Application on 24 January 2019;

Section 729 of the Act applies because the First Application has not been withdrawn by Mr McLeod, or failed for want of jurisdiction, or failed because the Commission was satisfied that the dismissal was a case of genuine redundancy;

By virtue of s.725 of the Act, Mr McLeod is precluded from making the Second Application, being an application of a kind referred to in s.729 of the Act.

[14] In other words, s.725 of the Act operates to preclude Mr McLeod from bringing the Second Application in circumstances where there is an extant unfair dismissal application before the Commission.

[15] Section 587(1) of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[16] Sections 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons and s.587(3) of the Act provides that the Commission may dismiss an application on its own initiative.

[17] Having regard to the circumstances of this matter, I am satisfied that Mr McLeod is precluded from making the Second Application by virtue of the operation of s.725 of the Act and I will exercise my discretion to dismiss it.

[18] Mr McLeod’s application is therefore dismissed pursuant to s.587 of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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