Yacov Loevski v Lewis Pharmacy and Lotto

[2016] FWC 7309

[2016] FWC 7309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Yacov Loevski
v
Lewis Pharmacy & Lotto
(U2016/10829)

COMMISSIONER WILSON MELBOURNE, 12 OCTOBER 2016

Application for relief from unfair dismissal - no reasonable prospects of success - application dismissed.

[1] On 29 August 2016, Mr Yacov Loevski made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act).

[2] The application discloses that Mr Loevski’s employment was terminated by Lewis Pharmacy & Lotto on 25 March 2009.

[3] By way of background, the Fair Work Commission and its predecessors have now received three applications from Mr Loevski in relation to the dismissal, namely;

• U2009/3236 - Application for relief re (Unlawful) termination of employment under s.643 of the Workplace Relations Act 1996, lodged on 15 April 2009;



• U2009/4315 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment under s.643 of the Workplace Relations Act 1996, lodged on 3 June 2009; and, most recently



• U2016/10829 - Application unfair dismissal remedy under s.394 of the Fair Work Act 2009, lodged on 29 August 2016.

[4] On 12 May 2009, her Honour Senior Deputy President Action issued a Certificate under s.650 of the Workplace Relations Act 1996, certifying that the then Australian Industrial Relations Commission was satisfied that all reasonable attempts to settle the matter by conciliation had been unsuccessful.

[5] On 8 July 2009, Foggo C issued a Statement and Decision 1 in relation to matters U2009/3236 and U2009/4315. In relation to U2009/3236, the Commissioner found, in summarizing Mr Loevski’s further options;

“[15] He will now have the option of commencing proceedings in a court of competent jurisdiction to seek an order relating to the alleged breach by the employer that the employer did not provide notice of the termination of Mr Loevski’s termination of employment.

…

[17] On the basis of the above decision the outcomes of the two applications by Mr Loevski are as follows:

The Notice of Election as amended in U2009/3236 has been lodged with the Commisison and it is now open for Mr Loevski to seek an order from a court of competent jurisdiction that the employer has breached s.661 of the Act in that he failed to give notice of the termination of employment. In respect of this application there are no further proceedings available through the Commission” 2

[6] That Statement and Decision, in short, granted an extension of time for lodgement and invited further written submissions in regards to U2009/4315.

[7] On 2 October 2009, Foggo C issued a Decision 3 dismissing Mr Loevski’s second application on jurisdictional grounds, because Mr Loevski was an independent contractor and not an employee of the Respondent.

[8] On 20 September 2016, the Commission, as presently constituted, issued correspondence to Mr Loevski, drawing to the Applicant’s attention the provisions of ss.725 and 729 of the FW Act, which provide as follows;

Subdivision B—Applications and complaints relating to dismissal

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.

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.

[9] The correspondence also indicated my preliminary view that, having made two earlier applications in relation to his termination of employment by Lewis Pharmacy & Lotto, ss.725 and 729 operated to prevent the progression of the most recent application, and that U2016/10829 therefore did not appear to have a reasonable prospect of success, as that term is referred to under s.587 of the Act. Section 587, in its entirety, 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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 prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[10] The correspondence issued on 20 September 2016 required Mr Loevski to provide the Fair Work Commission written material in response within 14 days.

[11] To date, Mr Loevski has not replied to that correspondence.

[12] In the circumstances of this matter, I am satisfied that Mr Loevski’s most recent application is barred by operation of ss.725 and 729 of the FW Act. To this end, I note that U2009/3236 has not been withdrawn by Mr Loevski; has not failed for want of jurisdiction; nor failed for reason of the Commission being satisfied that the dismissal was a case of genuine redundancy.

[13] In any event, the decision of Foggo C in relation to U2009/4315 found that Mr Loevski was an independent contractor and not an employee of the Respondent. On this basis alone I would be satisfied that the re-agitation of an application already determined by the Commission, and some 7 years ago, would lead me to be satisfied that the current application was without reasonable prospects.

[14] For these reasons, Mr Loevski’s application is dismissed under s.587(1)(c) of the FW Act. An Order to this effect will be issued in conjunction with this decision.

COMMISSIONER

 1   [2009] AIRC 676.

 2   Ibid [15], [17].

 3   [2009] AIRC 823.

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