s.394 - Unfair dismissal

Multiple proceedings in relation to dismissal - s 725 - applications dismissed

• [1] This decision concerns a jurisdictional objection that has been raised by the United Workers Union (UWU) to two related unfair dismissal applications brought against it under s 394 of the Fair Work Act 2009 (Act) by Pareen Minhas and Jonathon Dixon (applicants). The objection is that the applications are barred by s 725 of the Act, which prevents multiple applications of particular kinds.

• [2] On 27 November 2023, the applicants filed an originating application in the Federal Court of Australia alleging that the UWU had taken adverse action against them for prohibited reasons in connection with their involvement in organising a petition of UWU employees in support of bargaining for an enterprise agreement. In the concise statement that accompanied the application, the adverse action was said to comprise the following episodes of conduct on the part of the UWU: an investigation into the applicants' alleged misconduct; the imposition of certain restrictions on the applicants' duties; a request on 19 October 2023 that the applicants show cause why they should not be dismissed for breaching policies and their contracts of employment; the suspension of the applicants; and the UWU's advice to the applicants on 27 November 2023 that it had determined that the relevant allegations were substantiated, that the appropriate penalty was dismissal, and that the applicants were invited again to show cause why they should not be dismissed. The UWU's conduct on 27 November 2023 was referred to in the concise statement as the 'Proposed Dismissal'.

• [3] The originating application sought declarations of contraventions of the Act, orders for compensation and pecuniary penalties, and interlocutory and final injunctions to restrain the UWU from dismissing the applicants because of their conduct as alleged in the show cause letter. The application also sought reinstatement if the applicants were dismissed.

• [4] On 7 December 2023, Snaden J dismissed the application for interlocutory relief. On 18 December 2023, the UWU terminated the employment of each of the applicants.

• [5] On 22 December 2023, Ms Minhas lodged an unfair dismissal application in the Commission. On 5 January 2024, Mr Dixon did the same.

• [6] On 14 February 2024 Ms Minhas discontinued her involvement in the Federal Court application. On the same day, Mr Dixon amended the application to remove reference to the Proposed Dismissal.

• [7] Section 725 of the Act provides as follows:

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."

(a) a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction."

• [9] A 'general protections court application' is defined in s 368(4) as meaning 'an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part,' namely Part 3-1 of the Act, which contains the general protections provisions.

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction."

• [11] The UWU submitted that the unfair dismissal applications of Ms Minhas and Mr Dixon were applications of a kind referred to in s 729, and at the time when those applications were lodged, s 728 applied, because the applicants had earlier made a general protections court application that was 'in relation to' their dismissal, and the application had not been withdrawn or failed for want of jurisdiction. Although Ms Minhas had later discontinued her involvement in the court application and Mr Dixon had amended the application to remove reference to the Proposed Dismissal, these things occurred after the unfair dismissal applications were filed. They were therefore irrelevant, because s 725 applies as at the time the second application is made. The UWU contended that at the time when the applicants lodged their unfair dismissal applications, s 728 applied, and therefore those applications were prohibited by s 725.

• [12] The applicants contended that the general protections court application was not one that was 'in relation to the dismissal' because no dismissal had occurred at the time that application was made. The court application was in relation to a proposed dismissal, as well as other instances of adverse action, but not any actual dismissal. The applicants agreed with the UWU that the time at which one must apply s 725 was the time that the second relevant application is made, which in this case was the dates on which their unfair dismissal applications were filed. They submitted however that the use of the definite article in each of ss 725, 728 and 729 was significant and had a 'specifying or particularising effect' of prohibiting multiple applications in which the subject matter relates to the actual dismissal itself, rather than a threatened or possible dismissal. The application was therefore not one of the kind referred to in s 728 and the prohibition in s 725 was not engaged.

• [13] The applicants submitted that the concise statement that accompanied the originating application comprehensively identified the adverse action that was the subject of the proceeding, and included the investigation and show cause process, the stand down and also the Proposed Dismissal. All of these things were something other than an actual dismissal, both factually and for the purposes of the categorisation of adverse action in s 342 of the Act. If the Court ultimately decides to uphold the general protections court application, which is now maintained only by Mr Dixon, it will not be on the basis of the dismissal. The applicants said that no relief could be obtained for the dismissal, because they had not obtained a certificate under s 368 of the Act, which, pursuant to s 370, was necessary in order to bring a general protections court application in relation to a dismissal. The claim in the concise statement for reinstatement in the event that the applicants were dismissed had been a mistake. Further, no compensation awarded by the Court could be referrable to the dismissal, as no such compensation was in fact claimed.

• [14] The applicants contended that a sensible and harmonious reading of ss 365, 368, 370, 725, 728 and 729 of the Act was that an application in the nature of their general protections court application, which dealt with a proposed dismissal and other things that had occurred before any dismissal was effectuated, could not be and could not later become an application 'in relation to the dismissal' for the purposes of s 728, and that this section therefore did not apply at the time they lodged their unfair dismissal claims. The applicants said that the unfair dismissal applications were therefore not barred by s 725 of the Act and that the jurisdictional objection should be dismissed.

• [15] In my opinion the jurisdictional objection must be upheld. Section 725 prohibits a person who has been dismissed from making certain applications in relation to the dismissal if any of the relevant sections apply. It focuses attention on the point in time when a second application of a kind referred to in ss 726 to 732 is made. The question is whether on 22 December 2023 and 5 January 2024, when the applicants lodged their unfair dismissal applications, s 728 applied. In my view, it did. At that time, a general protections court application had been made by the applicants. It was an application 'in relation to the dismissal' of each of the applicants_._ The dismissals had not occurred when the general protections court application was made, but that does not matter, because s 725 is concerned with the state of affairs when the second application is made.

• [16] It is important to appreciate that the words 'the dismissal' in s 728 refer to the dismissal that is mentioned in s 725. The definite article connotes that the noun is known to the reader, and the reason it is known in this case is because the dismissal has been referred to in s 725, which is the provision by reference to which each of ss 728 to 732 operates. Section 725 prohibits a person who has been dismissed from making an application of a kind referred to in ss 728 to 732 in relation to the dismissal, if any other of those sections apply. It contemplates a situation where a person has been dismissed and proposes now to make a second application of particular kinds. It prohibits a second application if the circumstances of any of the relevant sections exist.

• [17] It was common ground between the parties, and plainly correct, that the question of whether an application is barred by s 725 is assessed at the time that the second application is made. Despite this, the applicants contended that in order for s 728 to apply, there must have been a dismissal at the time the general protections court application was made. But this contention proposes a different 'test time'. I cannot identify any basis for it. In my view, there is no occasion to consider whether the applicants had been dismissed when they made their general protections court application. The question is whether, when they filed the unfair dismissal applications, the earlier application was 'in relation to the dismissal'.

• [18] In order for s 728 to apply, the person who has been dismissed must have made an application that is, as a matter of fact, 'in relation to' the dismissal. An application may relate to a dismissal without necessarily seeking a remedy for the dismissal itself. As a matter of ordinary language, an application that is directed at a proposed or threatened dismissal that later occurs is an application 'in relation to the dismissal'.

• [19] The applicants contended that a harmonious reading of all the relevant provisions, and their references to 'the dismissal', would be one that saw each provision operate upon an actual dismissal, but no textual basis for this contention is identifiable, nor does a purposive approach support this contention. It might be thought to make policy sense to prohibit multiple claims that challenge actual dismissals, but it also makes sense to prevent multiple claims that are in relation to dismissals. It would have been easy for the Parliament to have made the application of ss 726 to 732 contingent upon a person having been dismissed at the time of the application contemplated in each of those sections. The provisions could have stated that they apply if a person has been dismissed. Such words are used in ss 365 and 725, but not in ss 728 to 732.

• [20] A contextual consideration supporting the UWU's construction is s 733, which provides that a reference in Division 3B to an application made in relation to a dismissal does not include a reference to an application made only in relation to a failure by the employer to provide a benefit to which the dismissed person is entitled as a result of the dismissal. In other words, a court application concerning an employer's failure to provide payment in lieu of notice of dismissal, or a claim concerning a failure to pay out accrued leave, will not be considered an application 'in relation to the dismissal'. Evidently, the Parliament considered it necessary to provide for the exclusion in s 733 because without it, such applications, although not seeking relief specifically for the dismissal, would still be one 'in relation to the dismissal'. Further, the legislature, having thought about this issue, chose to include the exception in s 733, rather than to say generally that the rule in s 725 only applies in cases where both applications are directed at a person's actual dismissal.

• [21] The applicants contended that their general protections court application could not be in relation to the dismissal because they had not made an application under s 365 of the Act and did not have a certificate issued under s 368 allowing them to make a general protections court application in relation to the dismissal. I do not accept this. Section 370(a) states that a person who is 'entitled to apply under s 365 for the Commission to deal with a dispute' must not make a general protections court application 'in relation to the dispute' unless the Commission has issued a certificate under s 368(3)(a). The applicants were not entitled to make an application under s 365 at the time they made their general protections court application, because s 365 only applies if a person has been dismissed and alleges that the dismissal was in contravention of Part 3-1. The prohibition in s 370(a) did not apply to the applicants, because they had not been dismissed at that time. Further, no certificate is required for a general protections court application in cases where, like the applicants, a person seeks an interim injunction (see s 370(b)). In any event, these provisions do not affect the factual question of whether, at the time the applicants lodged their unfair dismissal applications, the earlier application was 'in relation to the dismissal' of the applicants. In my view, s 365 is relevant only insofar as it is another section, similar to s 725, that speaks of a person who 'has been dismissed', words which are absent from s 728.

• [22] The originating application and concise statement identified among the species of adverse action at issue 'the Proposed Dismissal', as defined above. It sought interlocutory and final injunctive relief in respect of the Proposed Dismissal. The dismissal was precisely foreshadowed in the application. The intervention of the court was sought to prevent it. An injunction was refused by the court. The dismissals occurred. The applicants then lodged unfair dismissal applications. At the time when they did so, the applicants were persons who had been dismissed; contrary to s 725, they made an application 'of a kind referred to' in one of the identified sections (s 729) 'in relation to the dismissal', when another of the identified sections (s 728) applied. It does not matter that, after the unfair dismissal applications were lodged, Ms Minhas discontinued her involvement in the general protections court application and Mr Dixon amended the application's reference to the Proposed Dismissal. Section 725 prohibits a second application in defined circumstances. It is not concerned with what happens after a prohibited second application is lodged.

• [23] The applicants contended that their court claim was really one of the kind referred to in s 734, which states that a person must not make a general protections court application in relation to conduct that does not involve the dismissal of a person if an application or complaint under anti-discrimination law has been made by the person in relation to the conduct, and that application or complaint has not been withdrawn and has not failed for want of jurisdiction. They said that their claim fundamentally challenged the pre-dismissal conduct of the UWU, rather than the dismissal. But this is an assessment made from the point in time when the first application was made. From the point in time when the second application was lodged, the application was one that was 'in relation to the dismissal'.

• [24] The applicants contended that the purpose of s 725 was to prevent double dipping, and that they had not sought to double dip, because their court application sought certain remedies for conduct prior to their dismissal, and their unfair dismissal applications addressed their dismissal and sought reinstatement. But the operation of s 725 is not confined to cases where an applicant seeks essentially the same remedy twice. It prohibits a person who has been dismissed from making certain applications in relation to the dismissal if the person has already made another relevant application.

• [25] The application of s 725 to the circumstances of this case do not produce a manifestly unreasonable outcome that could not have been intended by the Parliament. The applicants made forensic choices about which applications to file at what times. The choices they made had the consequence that their unfair dismissal applications were barred by s 725.

• [26] The jurisdictional objection is upheld. The applications are dismissed.

W. Friend K.C. and L. Tiley for the United Workers' Union

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