s.365 - General Protections

Royal Melbourne Institute of Technology (RMIT University)

Application to deal with contravention of the general protections provisions involving dismissal; whether application prohibited by section 725 - application dismissed.

[1] Dr Amir Reza Zokaei Fard lodged an application under s 365 of the Fair Work Act 2009 (Cth) (Act) on 10 November 2022 (general protections application). The general protections application concerns the applicant's dismissal from the Royal Melbourne Institute of Technology (RMIT/respondent) on 16 December 2021.

• [2] The applicant indicated in his Form F8 general protections application that he had not made another claim to the Commission or to any other organisation regarding the dismissal.[1]

[3] The respondent raised two objections to the general protections application; first, that the application was made outside the timeframe prescribed by s 366(1) of the Act, and second that the applicant was prohibited from making the general protections application by reason of s 725 of the Act because he had already made an application for an unfair dismissal remedy pursuant to s 394(1) in relation to the dismissal.

[4] This decision concerns the latter of the respondent's objections.

[5] For the reasons that follow, the general protections application is prohibited by operation of s 725 of the Act. Accordingly, the general protections application has not been made in accordance with the Act and is dismissed.

• [6] Chapter 6 of the Act contains provisions dealing with multiple actions. Part 6-1, Division 3, Subdivision B of that Chapter contains provisions aimed at preventing multiple actions and complaints relating to a dismissal.[2] So far as is relevant to this application, those provisions are as follows:

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.

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(iii) resulted in the issue of a certificate under paragraph 368(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).

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(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 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; 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.

• [7] The expression "must not make an application" in s 725 of the Act imposes a prohibition on an applicant making a general protections application if they have already made an application or complaint of a kind to which one of ss 726-732 of the Act apply.[3] The prohibition goes to the jurisdiction of the Commission to deal with the general protections application.[4]

• [8] To the extent it might be suggested otherwise, a Full Bench has affirmed that the Commission is empowered to decide whether a general protections application is prohibited by the operation of s 725 of the Actin the process of determining its jurisdiction.[5]

• [9] The applicant filed an unfair dismissal application on 3 January 2022 using the Commission form prescribed for applications under s 394(1) of the Act.[6] The application identified RMIT as the respondent and sought a remedy in respect of the termination of his employment on 16 December 2021.[7] There is no dispute that this was an application for an unfair dismissal remedy under s 394(1) of the Act.

• [10] The unfair dismissal application was dealt with by the Commission and a decision was published on 31 May 2022.[8] The decision found the applicant's 16 December 2021 dismissal from the respondent to have not been unfair and dismissed the application.[9] The unfair dismissal decision was the subject of an appeal by the applicant. Permission to appeal was refused by the Full Bench.[10] It follows that the original decision remained undisturbed.

[11] Having regard to the above matters, I am satisfied that an unfair dismissal application has been made by the applicant in relation to the dismissal for the purposes of s 729(1)(a) of the Act, and that none of the exceptions in s 729(1)(b) are engaged. Being an application of a kind referred to in s 729 of the Act, it follows that s 725 is engaged to prevent another application of a kind referred to in ss 726-732 being made in relation to the dismissal.

• [12] The general protections application was made on 10 November 2022 using the Commission form prescribed for applications under s 365 of the Act.[11] The general protections application identified RMIT as the respondent[12] and sought a remedy in respect of the termination of the applicant's employment on 16 December 2021.[13] It is not in dispute that this is a general protections application under s 365 of the Act and that it has been made by the applicant in relation to his 16 December 2021 dismissal from the respondent such that s 727(1)(a) applies.

[13] Given the general protections application remains unresolved, plainly none of the exceptions in s 727(1)(b) are engaged.

• [14] It was not contended by the applicant in writing or orally that the general protections application was made in relation to a different instance of employment with the respondent. Rather, at the hearing, the applicant made submissions that the allegations in the unfair dismissal application and the general protections applications were different: the former being concerned with the "labour obligation for return to work" and the latter being concerned with a "workplace right, enterprise agreement"[14] which was not dealt with in the unfair dismissal decision.[15] While the applicant's intention may be to seek relief for different reasons, the conduct of concern is the same - that is, it relates to the applicant's dismissal from the respondent on 16 December 2021.

[15] I am satisfied that the dismissal to which the general protections application relates is the same dismissal that was the subject of the unfair dismissal application.

[16] In the circumstances described s 725 of the Act was contravened by the making of the general protections application. This contravention, as discussed, goes to the Commission's jurisdiction and the capacity to further deal with the general protections application.

[17] Section 587 of the Act provides as follows:

(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

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

(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:

[18] I find that the general protections application was not made in accordance with the Act. I therefore consider that it should be dismissed.

[19] Having regard to the above matters and the conclusions reached, the general protections application is dismissed pursuant to s 587(1)(a) of the Act.

[2] Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67 at [75]

[3] Hazledine, Karren Anne v Wakerley and Giddings [2017] FWCFB 500 at [12] citing Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67 at [61]

[4] Alex v Costco Wholesale Australia [2014] FWC 1904 at [11]

[5] Hazledine, Karren Anne v Wakerley and Giddings [2017] FWCFB 500 at [16] citing Storey v Aristocrat Leisure Limited t/a Aristocrat Technologies Australia [2016] FWCB 8735 at [22]

[6] Fair Work Commission Rules 2013 r 41 and Sch 1 "Form F2"

[7] Fard v Royal Melbourne Institute of Technology (RMIT University) [2022] FWC 1375 at [1]- [2] and fn [75]

[8] Fard v Royal Melbourne Institute of Technology (RMIT University) [2022] FWC 1375

[10] Fard v Royal Melbourne Institute of Technology (Respondent University) [2022] FWCFB 143

[11] F8 General protections application involving dismissal dated 1 November 2022

[14] Transcript of proceedings dated 8 February 2023 (Transcript) at PN15

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