Fair Work Act 2009

s 365 - General protections

Application to deal with contraventions involving dismissal - multiple applications - s 725 enlivened - dismissal under s 587(1)(a) at the Commission's initiative - application not made in accordance with the Act - application dismissed.

• [1] This decision concerns Mr Hoonsik Oh; his application under s 365 of the Fair Work Act 2009 (Cth) filed on Monday 23 December 2024; his prior application under s 394 of the Act filed on Tuesday 26 November 2024; and whether section 725 of the Act is enlivened in such a way that his general protections application should be dismissed.

• [2] Section 725 of the Act prevents the making of multiple applications in relation to the same dismissal:

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."

• [3] Both parties have filed material as to whether Mr Oh's general protections application can continue and have agreed that the matter can be determined on the papers.

• [4] Having considered the relevant facts in this matter, I find that Mr Oh's general protections application cannot continue. My detailed reasons follow.

• [5] The facts in this matter are not controversial and can be summarised as follows.

• [6] Mr Oh was employed by MRL Asset Management Pty Ltd. On Wednesday 6 November 2024, Mr Oh's employment with MRL came to an end by way of redundancy.

• [7] On Tuesday 26 November 2024, Mr Oh filed an unfair dismissal application under s 394 of the Act (Matter U2024/14199). On Tuesday 17 December 2024, MDC Legal came on the record as the legal representatives for Mr Oh. On Wednesday 18 December 2024, the parties participated in a conciliation conference conducted by a Commission staff conciliator.

• [8] The parties reached agreement to settle Mr Oh's unfair dismissal application. The Commission staff conciliator emailed the Fair Work Commission's standard deed with the agreed terms to the parties after the conciliation. Mr Oh and his lawyer at MDC Legal communicated about the deed. Mr Oh objected to the mutual release clause. Mr Oh did not sign the deed of release.

• [9] On Thursday 19 December 2024, Mr Oh emailed the Fair Work Commission. His email explained that he had filed an unfair dismissal application as he had thought it was the "correct" application for his situation. However, he had recently learned about the general protections jurisdiction and wished to make a general protections application. Mr Oh's email asked for advice on whether it was still possible to file a general protections application even though it was out of the 21-day timeframe for filing.

• [10] On Friday 20 December 2024, the Commission's Client Services emailed Mr Oh to confirm that his query had been received and advising him that it would be best for him to call so that his query could be discussed. It appears from the emails that Mr Oh spoke to a Client Services representative that day.

• [11] On Sunday 22 December 2024, Mr Oh filed his general protections application under s 365 of the Act. In response to the question "Has the Applicant started any other claims?" on Mr Oh's general protections application, Mr Oh acknowledges that he had previously filed an unfair dismissal application but that he was now of the view that a general protections application was more appropriate. Mr Oh's answer also stated, "Given the close connection between the claims, I respectfully request that both be considered together, Resolving both claims together will provide a more comprehensive and efficient solution to the retaliation and unfair treatment I have faced".

• [12] On Friday 3 January 2025 and Thursday 9 January 2025, Mr Oh had further correspondence with a representative of the Commission's Dispute Resolution Support Team. Mr Oh was informed that the file for his unfair dismissal application had been administratively closed on Wednesday 18 December 2024 as agreement had been reached between the parties to resolve the matter.

• [13] On Thursday 23 January 2025, Mr Oh emailed the Commission with a notice of discontinuance for his unfair dismissal matter. Mr Oh's email stated that, "the delay in submitting the F50 form was primarily due to my case being marked as "closed" and "settled at conference" in the Fair Work Commission (FWC) system as of 18 December 2024, which caused some confusion. I am now submitting the F50 form to rectify this record".

• [14] Mr Oh's email goes on to explain that he had reached agreement during the staff conciliation on compensation, confidentiality and administrative documents, but not on the release of other claims.

• [15] Mr Oh filed a voluminous amount of material regarding his substantive complaints under both applications regarding whether his dismissal met the test for a genuine redundancy and whether his dismissal was in contravention of Part 3-1 of the Act. I have not canvassed that material in this decision it is not relevant to the question that I must determine.

• [16] Mr Oh's submissions on whether s 725 is enlivened can be summarised as follows:

(a) The two applications are legally distinct: Mr Oh's unfair dismissal claim deals with whether his dismissal was a genuine redundancy as per s 389 of the Act. Mr Oh says that his general protections application is based on different legal issues, such as alleged retaliation for raising safety issues. Mr Oh further submits that because the two applications are "founded upon different sections and factual bases", s 725 does not bar him from pursuing both, and the Commission "retains jurisdiction over each matter".

(b) He relied on guidance from the Commission: Mr Oh only became aware of the general protections jurisdiction during the conciliation process for his unfair dismissal application. Mr Oh says that in his subsequent communications with the Commission, he was advised that a general protections claim could be "filed and reviewed". Mr Oh further submits that the Commission staff's "willingness" to accept his general protections application "demonstrates a procedural green light - the staff recognised no concurrency barrier under s. 725."

(c) Section 725 targets "true" double dipping: The purpose of s 725 is to prevent applicants from seeking the same remedy multiple times for the same dismissal. Mr Oh says that his two applications pursue different remedies.

(d) The unfair dismissal application was withdrawn in good faith: The introduction of a release clause into the deed of settlement for Mr Oh's unfair dismissal application was never agreed. Mr Oh says that on Thursday 9 January 2025 the Commission informed him that his unfair dismissal application had been "closed due to an administrative error". He then filed his notice of discontinuance for his unfair dismissal application.

(e) The unfair dismissal application was closed: The unfair dismissal application was "settled at conference". Under s 399A of the Act, the Commission can "decide not to proceed further" even absent an executed deed. Further, after the staff conciliation, neither party contacted the Commission to dispute the closure of the file. Mr Oh says that this is consistent with prior case law where a second application is barred only if the first application remained "on foot". Mr Oh also says that an administrative closing of a file is sufficient, and that a notice of discontinuance is not mandatory.

• [17] As noted by the Full Bench in Narayan v MW Engineers Pty Ltd,[1] the effect of the general rule in s 725 is that if s 729 applies, then the applicant cannot make any further complaint or application for relief under the Act or 'another law' in relation to the same dismissal.

• [18] Section 729 applies where an unfair dismissal application has been made, and the application has not been withdrawn by the applicant; failed for want of jurisdiction; or failed because the Commission was satisfied that the dismissal was a case of genuine redundancy.[2]

• [19] In this case, when Mr Oh filed his general protections application on Monday 23 December 2024, he had not withdrawn his unfair dismissal application; that occurred on Thursday 23 January 2025 when he filed a notice of discontinuance with the Commission. Prior to that, he had not indicated either verbally or in writing that he wished to discontinue his unfair dismissal application.

• [20] Mr Oh's unfair dismissal application was not dismissed for want of jurisdiction. Mr Oh's submissions regarding the administrative closing of his unfair dismissal application are misconceived. The administrative closing of a file on the Commission's end is not a decision under s 399A or a finding under any other section of the Act. At no point did the Commission dismiss Mr Oh's unfair dismissal application on the basis that it was outside the Commission's jurisdiction.

• [21] There was also no finding that Mr Oh's dismissal was a case of genuine redundancy.

• [22] For completeness, I find that Mr Oh's submissions regarding advice he received from the Commission on filing a general protections application are internally inconsistent and misconceived. By receiving Mr Oh's general protections application, there was no "green light" of his application from the Commission. In the email correspondence from a Commission Case Manager on Friday 3 January 2025, it was clearly stated to Mr Oh that the Act only allows for one application to be made in relation to a dismissal. Mr Oh was informed that as he had already lodged his application, it would continue to the next stage, and that if MRL raised the issue of multiple actions it would be dealt with by a Commission Member.

• [23] Section 587 confers a discretion on the Commission to dismiss Mr Oh's general protections application because it was not made in accordance with the Act - subject to affording Mr Oh procedural fairness.

• [24] Mr Oh filed substantial materials on the question of whether s 725 was enlivened and was given the opportunity to be further heard. Mr Oh requested that the matter be determined on the papers. I am satisfied that he has been afforded procedural fairness in this matter.

• [25] As per my findings in [19]-[21], I am satisfied that s 729 applied. This means that Mr Oh's general protections application was not made in accordance with s 725 of the Act. I have decided to dismiss Mr Oh's general protections application using the power under s 587(1)(a) and make the following order:

1. Mr Hoonsik Oh's application under s 365 of the Fair Work Act 2009 (Cth) made on Monday 23 December 2024 is dismissed.

[1] [2013] FWCFB 2530.

[2] Fair Work Act 2009 (Cth), s 729(1)(b).

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