Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

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 Adam Ashby; his application under s 365 of the Fair Work Act 2009 (Cth) filed on Wednesday 9 July; his prior application to the Western Australian Industrial Relations Commission filed on Thursday 29 May 2025; and whether s 725 of the Act is enlivened in such a way that his general protections application should be dismissed.

• [2] Mr Ashby's s 365 application has been made outside of the 21-day timeframe for filing. However, it is appropriate to first deal with whether Mr Ashby's application can be made due to s 725 of the Act.

• [3] I heard the matter on Wednesday 24 September 2025. Both parties were self-represented.

• [4] Having considered the relevant facts in this matter, I find that Mr Ashby'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 Ashby was employed by Water Corporation. He was dismissed on Monday 26 May 2025.

• [7] On Thursday 29 May 2025, Mr Ashby filed an unfair dismissal application with the WAIRC (U 59/2025) under the Industrial Relations Act 1979 (WA). This application was in respect to his dismissal by Water Corporation. On Wednesday 18 June 2025, Water Corporation provided its response to the WAIRC application, noting that Water Corporation is a national system employer and that Mr Ashby had made an application in the wrong jurisdiction.

• [8] On Monday 23 June 2025, the parties attended a conciliation in the WAIRC. On Tuesday 8 July 2025, the WAIRC wrote to the parties asking Mr Ashby to confirm whether he had sought legal advice and whether he had decided to discontinue his WAIRC application.

• [9] On Wednesday 9 July 2025, Mr Ashby filed this s 365 application.

• [10] On Monday 28 July 2025, Water Corporation contacted the WAIRC to confirm whether the WAIRC application was still on foot. The WAIRC confirmed it was. The WAIRC emailed the parties that same day asking Mr Ashby to file a notice of discontinuance.

• [11] On Tuesday 29 July 2025, Mr Ashby filed a notice of discontinuance for his WAIRC unfair dismissal application.

• [12] Mr Ashby filed a significant amount of material regarding his substantive complaints and the disadvantages that neurodivergent people face in the workplace. I appreciate that much of the material is important to Mr Ashby. However, I do not canvass all the content in Mr Ashby's materials as they are not relevant to the question that I must determine.

• [13] Mr Ashby submits that his application under s 365 alleges breaches of s 351 of the Act, which prohibits discrimination based on disability. This cause of action is not mirrored in the WA state industrial relations system. There is therefore 'exclusive federal jurisdiction that the [WAIRC] cannot exercise'.

• [14] Mr Ashby submits that a 'strict application' of s 725 to bar claims made in relation to s 351 would 'render section 351 protections illusory for employees who initially pursue incorrect remedies'; 'create jurisdictional gaps leaving workplace discrimination without federal remedy'; 'undermine the comprehensive anti-discrimination legislative scheme Parliament intended'; and disadvantage workers who are navigating overlapping jurisdictions.

• [15] 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.'

• [16] Section 732 applies where an application or complaint under another law has been made by the applicant in relation to a dismissal, and the application has not been withdrawn by the applicant or failed for want of jurisdiction. Section 732 also sets out that an 'application or complaint under another law' includes applications made under a law of a State or Territory.

• [17] The following principles in relation to s 725 can be drawn from the relevant authorities:[1]

(a) The phrase 'in relation to' is a well-known relational term of generally wide import. The nature and breadth in application depends on the statutory context and purpose. It does not extend to tenuous or remote relationships.

(b) The term 'must not' indicates command or necessity.

(c) The provisions of Subdivision B or Division 3 of Part 6-1 of the Act have the purpose of restricting a person with multiple remedies in relation to that person's dismissal from applying for more than one available remedy.

(d) Section 725 is concerned with the situation when the second application is made. It contemplates circumstances where an individual has been dismissed and intends to make a second application of a particular kind. Section 725 prohibits the making of a second application in such a situation.

(e) The second application is not saved or made legitimate by a subsequent withdrawal of the first application. This is because s 725 is not concerned with what happens after a prohibited second application is lodged.

(f) An application may relate to a dismissal without necessarily seeking a remedy for the dismissal itself.

(g) For an application to have been 'made', it is not necessary for it to have been validly made in terms of jurisdictional or procedural requirements being met.

(h) The word 'withdrawn' in ss 726 - 732 inherently involves doing something active by way of withdrawal.

• [18] Mr Ashby's WAIRC unfair dismissal application was made under the Industrial Relations Act 1979 (WA). It is therefore a complaint to which s 732 applies. When Mr Ashby filed his general protections application on Wednesday 9 July 2025, he had not withdrawn his WAIRC application. Mr Ashby's WAIRC application also had not been dismissed for want of jurisdiction.

• [19] Mr Ashby's submissions regarding the Commission's exclusive jurisdiction over s 351 are misconceived. Whilst Mr Ashby's general protections application does allege breaches of s 351, and whilst there may not be an analogous section in the Industrial Relations Act 1979 (WA), I find that both his WAIRC unfair dismissal application and this general protections application are primarily concerned with his dismissal by Water Corporation. They are both in relation to the same dismissal.

• [20] For completeness, I note that contrary to Mr Ashby's submissions, section 725 does not bar individuals from making general protections claims where they have previously made applications or complaints under other legislation. What it does is bar people from making such applications before the first application or complaint is discontinued or dismissed for want of jurisdiction.

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

• [22] Mr Ashby filed substantial materials and was given the opportunity to be further heard. I am satisfied that he has been afforded procedural fairness in this matter.

• [23] As per my findings in [18]-[20], I am satisfied that s 732 applied. This means that Mr Ashby's general protections application was not made in accordance with s 725 of the Act. I have decided to dismiss Mr Ashby's general protections application using the power under s 587(1)(a) and make the following order:

1. Mr Adam Ashby's application under s 365 of the Fair Work Act 2009 (Cth) made on Wednesday 9 July 2025 is dismissed.

[1] See Dr Bing Du v University of Ballarat [2011] FWAFB 5225, (2011) 211 IR 382; Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5, (2012) 218 IR 67; Lawless v Qantas Airways Ltd [2014] FWC 744; Qantas Airways Ltd v Lawless [2014] FWCFB 3582; Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660; Hazledine v Wakerley [2017] FWCFB 500, (2017) 266 IR 118; Dias v Commonwealth Bank Group [2021] FCCA 601; Minhas v United Workers Union [2024] FWC 805 and Dixon v United Workers' Union [2024] FWCFB 442, (2024) 337 IR 1.

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