Temporary absence from work because of illness or injury (s.772(1)(a)).

No, because of the operation of s.723 the FW Act that prevents a person making an unlawful termination application if they can make a general protections court application.

The filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities (s.772(1)(e)).

Yes, see ss. 340, 341 (meaning of workplace right), 342 (meaning of adverse action includes dismissal).

The participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities (s.772(1)(e)).

Yes, see ss. 340, 341 (meaning of workplace right).

Discrimination - physical or mental disability (s.772(1)(f)).

No, because s.351(2) renders s.351(1) inoperative if the action is "not unlawful under any anti-discrimination law..."

In NSW discrimination on the basis of political opinion is not unlawful.

Therefore, a s.365 application to deal with a dismissal because of a political opinion cannot be brought by a person in NSW.

Yes, because s.723 has no application to the Applicant in relation to termination by reason of a dismissal based on political opinion.

Discrimination - national extraction or social origin (s.772(1)(f))

[39] What this means is that, as it is presently drafted, the Form F9 Application is:

1. incompetent in large measure; but

2. competent in so far as it seeks to prosecute a claim that "political opinion" was the basis for UNSW terminating Dr Krcho's employment.

[40] In indicating that an aspect of the unlawful termination claim made by Dr Krcho against UNSW is competent I am in no way expressing a view about the merits or strength of that cause of action. It is not my role in a jurisdictional hearing to decide that issue. I am merely dealing with whether the jurisdiction of the Commission is enlivened.

[41] In this instance the Respondent, UNSW, has made a challenge to an application for unlawful termination of employment which was taken under s. 773 of the FW Act. The challenge to the Form F9 Application made by UNSW relies upon the purported operation of s. 723 of the FW Act.

[42] I have concluded that in the particular circumstances of this case, s. 723 of the FW Act does not operate entirely as a jurisdictional bar to the Form F9 Application, as the Applicant is not a person who is entitled to make a general protections court application in relation to the conduct that he complains of, namely "political opinion". However, the present application is much wider in its intent.

[43] My decision is consistent with the observations made by the Commissioner in mcintyre,

[45] My conclusions have been broadly drawn from a purposive interpretation of the Act cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in particular, should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person's "day in court". In the circumstances of this case the Applicant does not seek multiple proceedings or remedies but simply seeks to have his day in court.

[44] I am conscious that the Form F9 Application was prepared by a non-legally trained person and, it may be that, as presently drafted, the Form F9 Application might deprive the Applicant of his day in court.

[45] I further note that the Commission has the power to "allow a correction or amendment of any application, ... relating to a matter before the [Commission], on any terms that it considers appropriate."[19]

[46] The Applicant has not made an application to correct or amend the Form F9 Application. If he did so, such that the answer to section 3.2 was confined to "political opinion", it seems that no jurisdictional complaint could be made about it. Again, I am not expressing a view about the merits of the claim that the Applicant was dismissed because of his political opinion. But because all the other grounds are statute barred (because of the operation of s.723), "political opinion" is all that the Applicant is left with. He might well have been in a stronger position if he had commenced an application under s.365 of the FW Act in respect of all the other grounds except political opinion. But he made an election about which kind of application to make on 12 May 2020 and he is stuck with the decision he made. But, presently, there are difficulties with that application.

[47] It is not my job to tell the Applicant how to run his matter. It is entirely a matter for him. However, in fairness to the Applicant I think I should allow him an opportunity to seek a correction or amendment. If he does make such an application I will then hear from UNSW about the same.

[48] For these reasons the Applicant is directed to file in the Commission and serve on UNSW any application he wants to make to correct or amend the Form F9 Application made by him on 12 March 2019. Any application to correct or amend the Form F9 Application must be made on a Form F1[20] by 4.00 pm on Friday, 28 August 2020.

[49] That is not to say the Applicant must make an application to correct or amend the Form F9 Application. That is entirely a matter for him to decide.

[50] If:

1. such an application is made I will invite UNSW to respond to it. It may be that they form the view that there is no prejudice to them in not opposing the correction or amendment. In which case it will likely be granted and the matter can be listed for conciliation.

2. no such application is made I will issue a final decision in relation the present application made by UNSW to have the Applicant's unlawful termination dispute application dismissed.

Respondent, in answer to questions from the Commissioner, 19 August 2020

[3] [2018] FWC 6691, [1]

[4] [2018] FWC 6691

[5] [2019] FWC 5278

[6] [2019] FWCFB 8269

[7] [2020] FWC 181

[9] See letter to the Applicant from Professor Mark Hoffman Dean, UNSW Engineering, dated 19 March 2019

[10] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 42; (2012) 248 CLR 549 at paras 102, 104, per Gummow and Hayne JJ.

[11] Or if the parties agree to consent arbitration, the Commission (s.369 FW Act)

[12] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 42; (2012) 248 CLR 549

[13] On 27 April 2020 the appeal from [2020] FWC 181 was adjourned sine die.

[14] In particular pages 7 - 14, paragraphs (7)-(20)

[15] Respondent's Jurisdictional Outline of Submissions, para 8(e)

[16] [2015] FWC 6768