Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the modern award and the NES; [s146] - dismissal under s.587 at the Commission's initiative - application dismissed.

[1] On 20 September 2020 Mr Josh Thiyagarajah made an application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure pursuant to s.739 of the Fair Work Act 2009 (Act).

[2] In answer to question 2.1 of the Form F10, which asks the applicant to set out a description of what the dispute is about, the Applicant stated:

[3] In answer to question 2.4 of the Form F10, which asks the applicant to set out the steps already taken to resolve the dispute under the dispute resolution procedure of the relevant industrial instrument, Mr Thiyagarajah relevantly stated:

Third Step - On 9th September 2020 I sent an email after being made redundant due to COVID -19 requesting reimbursement of the TAFE fees that I have paid since the 4th of February 2020 through till the date of my termination 14th August 2020.

[4] On 21 and 23 September 2020, my Associate attempted unsuccessfully to contacted Mr Thiyagarajah via telephone to discuss his application.

[5] On 24 September 2020 my Associate successfully contacted Mr Thiyagarajah via telephone. When Mr Thiyagarajah confirmed that he was no longer employed by the Respondent, he was informed that the Commission lacks jurisdiction to deal with the matter pursuant to s.739 of the Act and was invited to discontinue the application. He indicated that he would consider his position and revert that afternoon and advise then if he wished to withdraw the application or would seek to press the application.

[6] Mr Thiyagarajah did not contact the Commission on the afternoon of 24 September 2020 as he indicated he would. On 25 September 2020 my Associate sent the Applicant an email attaching a blank Form F50 - Notice of discontinuance and requested that he complete and return the Form F50 if he wished to discontinue the application.

[7] The application was not discontinued and on 30 September 2020 my Associate tried to contact the Applicant via telephone but received no answer. My Associate attempted to contact Mr Thiyagarajah unsuccessfully via telephone again on 2 and 9 October 2020.

[8] When a further attempt to contact Mr Thiyagarajah via telephone on 13 October 2020 was unsuccessful, an email was sent to the Applicant stating that on the face of the application it does not appear that the Commission has jurisdiction to deal with the matter and indicating that if Mr Thiyagarajah wished to make submissions in relation to this issue, he should do so by 5:00 pm on Friday, 16 October 2020. The email made plain that if no submissions were received, the matter would be determined on the basis of the material filed to date and would likely be dismissed.

[9] At the time of this Decision, the Applicant has not responded to the email of 13 October 2020.

[10] I have decided to dismiss Mr Thiyagarajah's application pursuant to s.587 of the Act.

[11] Section 587 of the Act states:

(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:

[12] By his application, Mr Thiyagarajah seeks relief under s.739 of the Act. On the face of the application it does not appear that the Commission has jurisdiction to deal with the matter.

[13] Section 739 of the Act states, relevantly, that:

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

[14] Section 738 of the Act states, relevantly, that:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

[15] In his application Mr Thiyagarajah indicates that his employment has been terminated on redundancy grounds because of the economic impact of the COVID-19 pandemic. In a telephone conversation with my Associate on 24 September 2020, Mr Thiyagarajah confirmed that his employment with the Respondent had ceased.

[16] Based on the above, I am satisfied that at the time the application was made the Applicant's employment relationship with the Respondent had ended. The relevant reference instrument which might engage s.739 of the Act did not apply to Mr Thiyagarajah at the time the application was made.

[17] In the circumstances, I find that the Commission has no jurisdiction to deal with the matter as an application to deal with a dispute in accordance with a dispute settlement procedure.

[18] In deciding to dismiss Mr Thiyagarajah's application I have had regard to the observation in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others that the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution.[1] Numerous attempts have been made to contact Mr Thiyagarajah and discuss his application and the issue mentioned above. Despite these attempts, Mr Thiyagarajah has failed to engage with the application. In circumstances where Mr Thiyagarajah has been notified of a preliminary view that the Commission lacks jurisdiction to deal with the matter and has been invited to make submissions addressing this issue, but has chosen not to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

[1] [1964] HCA 69; (1964) 112 CLR 125 at 128-9

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