[8] Against the objection of UNSW, I granted an extension of time to 11 September 2020.

[9] On 10 September 2020, Dr Krcho filed a Notice of Appeal and sought a stay of the interim decision under s. 606 of the FW Act.

[10] On 14 September 2020 her Honour, Deputy President Asbury, declined to issue a stay.[2] Her Honour held that,

"[15] In the present case the decision against which the stay is sought was that Commissioner Johns would proceed to make a final decision in relation to Dr Krcho's application, which was subsequent to Dr Krcho deciding how he wished his application to proceed.

[16] I do not accept Dr Krcho's submission that a final decision has been made with an ongoing operative effect that is capable of being stayed. All that has occurred is that the Commissioner has stated that absent the filing of an amended application, the Commissioner would proceed to issue a final decision in relation to an application made by UNSW to have Dr Krcho's unlawful termination dispute application dismissed. I also do not accept Dr Krcho's submission that this statement means the Commissioner will inevitably dismiss the application.

[17] There has been no final decision made in relation to Dr Krcho's application. As previously stated, if Dr Krcho is dissatisfied with the final decision once it is made, he can also seek permission to appeal and seek a stay of that decision.

[18] I also do not accept Dr Krcho's submission that refusing the stay removes his right and ability to be fully heard, and to have "the question of law" properly decided by the Commission. Dr Krcho's present application seeking to appeal the interim decision will be listed for hearing before a Full Bench of the Commission.

[19] A stay will not alter the status quo in any substantive manner or in a manner relevant to the appeal. Further, it cannot be said that the balance of convenience favours the grant of a stay.

[20] For these reasons I refuse Dr Krcho's application for a stay of the Decision in [2020] FWC 4435. Dr Krcho should note that my decision to refuse a stay of the decision is not based on any finding about the merits of his appeal against the interim decision or any subsequent appeal he may file if dissatisfied with any final decision."

[11] Following the stay decision, I wrote to the parties in the following terms,

The Commissioner notes that no application has been made to amend the original s.773 application.

Notwithstanding, and out of an abundance of procedural fairness to the Applicant, the Commissioner has decided to provide the Applicant with a further opportunity to file any application he wants to make amend his original s.773 application.

If he chooses to do so, he must do so by 4 pm on Friday, 18 September 2020."

[12] The Applicant did not file an application to amend his original s.773 application.

[13] Because the stay was declined, I was entitled to determine the substantive matter to finality. However, out of an abundance of regard for an applicant who is not legally trained or legally represented, I decided to await the appeal decision.

[14] On Friday, 29 January 2021 the Full Bench refused permission to appeal.[3] It held that,

"[55] As we have observed, the Commission has not dismissed the Appellant's unlawful termination application. Rather, the Commissioner has provided the Appellant with an option to overcome the jurisdictional objection raised by the Respondent by seeking to amend his application. The Appellant is free to take up the option or not. If the Appellant does not opt to amend his unlawful termination application, the Commissioner has indicated that he will proceed to determine the Respondent's jurisdictional objection. If the Appellant is aggrieved by a decision of the Commissioner determining the Respondent's jurisdictional objection, the Appellant may appeal such decision.

[56] If the Appellant does decide to amend his unlawful termination application the Commissioner has indicated that he will hear from the Respondent as to its views about such an amendment before deciding whether to allow the amendment. It may be that the Respondent objects to the amendment. If the Commissioner was to allow the amendment over an objection by the Respondent, such decision may also be subject of an appeal by the Respondent.

[57] The Appellant has not elected either option suggested by the Commissioner but has instead lodged this appeal. In our view the appeal is premature. If the Appellant wishes to maintain the position advanced in the appeal, he need only inform the Commissioner that he declines to "devalue" his unlawful termination application by removing all grounds other than political opinion. If the Commissioner then proceeds to dismiss his unlawful termination application, the Appellant may lodge an appeal against that decision.

[58] There may be cases where an interim or provisional decision does affect substantive rights in a manner which cannot be redressed in an appeal against a final decision. Such cases may warrant a departure from the well-established position that appeals from preliminary or procedural rulings are discouraged. The present case is not one of these. The Commissioner has laid out some options and if the Appellant maintains the position he has adopted in the present appeal, and declines to amend his application, he will be entitled to appeal any final decision to dismiss his application. If such an appeal succeeds the Appellant will be permitted to advance his application in the form he seeks and will have lost no right in this regard which cannot be restored consequent on a successful appeal.

[59] Even if the decision is substantive, it forms part of a broader controversy, the totality of which may be the subject of a single appeal. Further, there is no substantive or procedural prejudice to the Appellant arising from a refusal of permission to appeal in circumstances where all his appeal grounds can be advanced in a later appeal against a final decision. In those circumstances, we do not consider that the present appeal enlivens the public interest, or that permission to appeal should otherwise be granted under s. 604(2)."

[15] Permission to appeal was refused and the appeal was dismissed.

"[46] It is not my job to tell the Applicant how to run his matter. It is entirely a matter for him.

[48] 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."

[17] Since first inviting the Applicant to do so 163 days ago, he has not made an application to amend or correct his Form F9 Application.

[18] Following the decision of the Full Bench I considered allowing the Applicant a further opportunity to lodge an application to correct or amend the Form F9 Application. However, you can only "lead a horse to water" so many times. The Full Bench noted that,

"[28] The Appellant also took issue with the email correspondence sent to him by the Commissioner after the decision was released including the email on 14 September 2020, which the Appellant referred to as an "ultimatum email". The Appellant took further issue with the provision by the Commissioner of a "draft Form F1" to amend his F9 Application which the Appellant states was "partially pre-filled" by the Commissioner.[4] The Appellant stated that such "sudden and unexpected assistance" was perceived by him as "highly unusual, unorthodox, questionable and most likely untrustworthy" in light of what he viewed as consistent and profound bias against him by the Commissioner. The Appellant contends that the Commissioner provided incorrect legal advice by partially pre-filling the form, which severely limited his right to be fully heard."

[19] Further, UNSW filed its objection to the application more than 10 months ago. In fairness to the Respondent, it is entitled to have the matter finally determined (at least at first instance).

[20] Because the Applicant has decided not to amend his Application it remains as it was when it was filed on 12 March 2020, that it to say, the Application is incompetent in large measure.

[21] Section 723 of the FW Act provides:

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct."

[22] A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to an alleged contravention of Part 3-1 of the FW Act.[5] Applications under Division 2 of Part 4-1 are able to be made by national system employees with respect to alleged conduct by national system employers.

[23] There is little doubt that, and I find, UNSW is a national system employer.[6] Consequently, I also find that the Applicant was a national system employee.

[24] Because the Applicant was a national system employee, I am satisfied that:

1. in respect of six out of the seven grounds he alleges in his s.773 Application, he could have made a general protections court application; and consequently,

2. he is, by virtue of s.723 statute barred from making a s.773 Application in relation to those matters.

[25] In circumstances were the Applicant has not made an application to amend or correct his s.773 Application, the substantive application has not been made in accordance with the FW Act.

[26] 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.

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:

[27] Based on the above, I am satisfied that the Applicant was entitled to make a general protections court application in relation to the conduct alleged in the s.773 Application. The application is thus not made in accordance with the Act.

[28] Although the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution, the numerous attempts made to assist Dr Krcho to regularise his s.773 Application have amounted to nought.

[29] The Applicant has not sought to amend the s.773 Application.

[30] In circumstances where the Applicant has:

1. through the Interim Decision, been notified of the deficiencies with the s.773 Application;

2. been invited to remedy the deficiencies, but

3. chosen not to do so

I am persuaded that I should exercise my discretion under s.587 of the FW Act and dismiss the s.773 Application.

[31] An Order to this effect [PR726560] has been issued with this decision.

[1] [2020] FWC 4435.

[2] [2020] FWC 4926.

[3] [2021] FWCFB 350.

[4] Appellant's 'complaints' submissions filed 18 September 2020.

[5] Fair Work Act 2009, s.368(4)

[6] Ibid, s.14.

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