Thomas Glenn Hall v AGL
[2025] FWC 151
•24 JANUARY 2025
| [2025] FWC 151 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Thomas Glenn Hall
v
AGL
(C2024/9270)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 24 JANUARY 2025 |
Application to deal with an unlawful termination dispute – national system employer – dismissal under s.587 at the Commission’s initiative.
On 23 December 2024, Mr Thomas Glenn Hall lodged a Form F9 – application to deal with an unlawful termination dispute (Form F9) with the Fair Work Commission, pursuant to s.773 of the Fair Work Act 2009 (the Act). In response to question 2.4 of the Form F9 – “Do you consider that you are not entitled to make a general protections court application?” – Mr Hall answered both “Yes” and “No”.
On 23 December 2024, the Commission sent Mr Hall correspondence to his nominated email address, notifying Mr Hall that he may not be eligible to make his application as it appeared that AGL (the Respondent) may be a national system employer, and this would mean that he could make a general protections application. The correspondence included information on the different types of applications that deal with dismissal and further stated:
“If you can make a general protections application, then you can’t make an unlawful termination application.
There are strict time limits. You need to decide which application you want to make as soon as you can.”
On 24 December 2024, the Commission sent the above correspondence to the email address Mr Hall used to file his application, as the Commission had received email notifications that the initial correspondence, sent to Mr Hall’s nominated email address, was undeliverable. The email was followed by an SMS notification to Mr Hall’s nominated telephone number requesting that he contact the Commission due to a problem with his application.
On 3 January 2025, the Commission attempted to contact Mr Hall on his nominated telephone number, however Mr Hall did not answer the call. A voicemail message was left requesting that he contact the Commission.
On 8 January 2025, the Commission served Mr Hall’s application on the Respondent, requesting that the Respondent file a Form F9A – Employer Response (Form F9A). On 15 January 2025, the Respondent filed with the Commission, and served on Mr Hall’s secondary email address, a Form F9A. The Respondent confirmed that they are national system employer and that they are raising the jurisdictional objection that Mr Hall is not eligible to make an application pursuant to s.773 of the Act, as he is entitled to make a general protections application.
To date, Mr Hall has not contacted the Commission as requested.
Pursuant to s.723 of the FW Act, a person entitled to make a general protections application must not make an unlawful termination application. Section 587(1) of the FW Act provides as follows:
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 prospect of success.
(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospect of success.
(3) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application
In the circumstances, I am persuaded that Mr Hall has lodged an unlawful termination application when he is entitled to make a general protections application because his employer is a national system employer. Accordingly, I am satisfied the application has been made in contradiction of s.723 of the Act, which is expressed in mandatory terms. Having regard to this, and given the lack of a response from Mr Hall, I am satisfied that I should exercise my discretion and dismiss the application pursuant to s.587(1)(a) of the Act. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR783353.
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