Fair Work Act 2009

s.773 - Termination of employment

Application under s.773 of the Fair Work Act 2009 - s.725 enlivened - application dismissed pursuant to s.587(1)(a).

• [1] On 29 September 2024, Mr Myrjun Hiso lodged an application under s.394 of the Fair Work Act 2009 (the Act), for unfair dismissal remedy in relation to the termination of his employment, on 19 February 2024, with Somerville Retail Services Pty Ltd. This application was given the matter number U2024/11579 and was allocated to Commissioner Yilmaz (the Unfair Dismissal Application). The Unfair Dismissal Application was filed 202 days outside of the 21-day period, and so Mr Hiso was required to seek an extension of time for the application to be made under s.394(3) of the Act.

• [2] On 20 October 2024, Mr Hiso filed a second dismissal dispute application, under s.773 of the Act, a Form F9 - Application for the FWC to deal with an unlawful termination dispute in relation to the termination of his employment with Somerville Retail Services Pty Ltd. This application was given the matter number C2024/7458 (the Unlawful Termination Application).

• [3] On 25 October 2024, I caused correspondence to be sent from my Chambers to the parties. This correspondence identified the two applications made by Mr Hiso and outlined that s.725 of the Act prohibits the making of multiple applications in relation to the same dismissal and, in particular, that a second application must not be made. The parties were informed that it was my provisional view that the s.773 application, being the second application made, was not a valid application because it had not been made in accordance with the Act. Mr Hiso was invited to advise the Commission whether he wished to continue with the s.773 application.

• [4] On 27 October 2024, Mr Hiso emailed my Chambers, stating: "Why I need to widraw my application, I need it so that I know what going on,I'm not signed any bargain enterprise, employer didn't tell that they changed company.im under general protection because I'm injury". The email went to the merits of his application and did not address the issue of him holding two concurrent dismissal applications.

• [5] On 11 November 2024, Commissioner Yilmaz published a Decision[1], determining that an extension of time was not warranted, and dismissing the Unfair Dismissal Application. Commissioner Yilmaz's decision makes reference to the fact that Mr Hiso made an Unlawful Termination Application, outlining:

"On 20 October 2024, Mr Hiso further filed an unlawful dismissal application. It was explained to him that an unlawful dismissal application cannot be made where a general protection application can be made. Mr Hiso expressed his desire to claim general protection because he was dismissed due to his injury. I informed Mr Hiso that two dismissal applications cannot be made simultaneously. He understood this but could not decide which application is best to pursue. On this basis this decision only concerns his unfair dismissal extension of time application."[2]

• [6] Section 725 of the Act prevents, in particular circumstances, multiple applications being made in relation to the same dismissal and provides:

"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."

• [7] Unfair dismissal applications and unlawful terminations applications are applications with which s.725 is concerned. Having regard to the factual background, Mr Hiso was prevented from making the s.773 application (an application "referred to" in s.725) because s.729 applied. This is because when Mr Hiso lodged the s.773 application on 20 October 2024, he had already made the unfair dismissal application and before doing so, that unfair dismissal application had not:
  • Been withdrawn by him (s.729(1)(b)(i)); or
  • Failed for want of jurisdiction (s.729(1)(b)(ii)); or
  • Failed because the Commission was satisfied that the dismissal was a case of genuine redundancy (s.729(1)(b)(iii)).

As such, I am satisfied that the s.773 application was not made in accordance with s.725 of the Act and that it is appropriate that I exercise the power in s.587(1)(a) of the Act to dismiss it. An Order[3] to this effect will be issued with this decision.

[1] [2024] FWC 3105

[2] [2024] FWC 3105 at [7].

[3] PR781721.

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