Fair Work Act 2009
s.365—General protections

Rui Liu
v
Jack Xu, Zhong Hua Zhu, Bin Xin, Hou Ming Chu, JHC Corporate P/L
(C2021/7586)

Application to deal with contraventions involving dismissal – applicant had unfair dismissal claim determined on the merits – general protections application filed post determination of unfair dismissal claim – whether application prohibited by s.725 of the Fair Work Act 2009 - application dismissed.

Introduction

[1] On 3 November 2021, Ms Rui Liu (Applicant) filed a Form F8 general protections involving dismissal application (GP Application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The GP Application is in relation to the Applicant’s dismissal by her former employer, JHC Corporate Pty Ltd (JHC), on 26 March 2021. 1

[2] The GP Application follows the hearing and determination of an unfair dismissal claim made by the Applicant pursuant to s.394(1) of the Act (also made in relation to the Applicant’s dismissal by JHC on 26 March 2021) (UD claim).

[3] I note that on 7 September 2021, Commissioner Wilson issued his decision in respect of the Applicant’s unfair dismissal claim against JHC (see Rui Liu v JHC Corporate P/L [2021] FWC 5345 (UD decision)). In the UD decision, Commissioner Wilson dismissed the Respondent’s objections based upon the small business code and genuine redundancy, and resolved the UD claim based upon its merits (“I am unable to find that Ms Liu was unfairly dismissed”). 2

[4] An initial mention of the GP Application occurred before me on 6 December 2021. During that mention, I drew the Applicant’s attention to ss.725, 727 and 729 of the Act, which read:

725 General rule

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.

727 General protections FWC applications

(1) This section applies if:

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

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

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

(b) the application has not:

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

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

729 Unfair dismissal applications

(1) This section applies if:

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

(b) the application has not:

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

(ii) failed for want of jurisdiction; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

[5] Having been made aware of the foregoing statutory provisions, the Applicant advised that she nonetheless pressed her GP Application. Directions were issued on 6 December 2021 which read:

“[1] By 4.00pm AEDT on Monday, 13 December 2021, all parties are to file and serve any submissions, witness statements and all other evidence going to the issue of whether or not the application filed by the Applicant on 3 November 2021 should be dismissed under s.725 of the Fair Work Act 2009 (Cth), by virtue of the application of s.729 of the Act.

[2] Filing of documents is to occur by email to the Associate to Deputy President Boyce at chambers.boyce.dp@fwc.gov.au. Please note that any correspondence sent to Chambers regarding this matter must copy in all other parties and/or their representatives.

[3] Liberty to apply generally.”

[6] The parties agreed for me to resolve and determine whether to dismiss the GP Application by reference to s.725 of the Act on the papers.

Consideration

[7] The Applicant essentially (and relevantly) submits that s.725 of the Act has no application given that she filed an appeal in respect of the UD decision, but discontinued the appeal before it was determined (and filed the GP Application instead). 3

[8] I reject the forgoing submission, and make the following findings:

(a) Section 729 of the Act applies in that:

(i) the UD claim was made by the Applicant (under s.394(1) of the Act) in relation to her dismissal by JHC on 26 March 2021; and

(ii) the UD claim was not withdrawn, nor did it fail for want of jurisdiction or because the Applicant’s dismissal was found to be a “genuine redundancy”; and

(iii) the UD claim was determined on its merits, and dismissed.

(b) the GP Application is an application referred to in s.727 of the Act, in that it has been made by the Applicant in relation to her dismissal by JHC on 26 March 2021, and the GP Application has not:

(i) been withdrawn;

(ii) failed for want of jurisdiction; or

(iii) resulted in the issuing of a certificate under s.368(3)(a) of the Act.

[9] In view of these findings, pursuant to s.725 of the Act, I determine that the GP Application is one that is unable to be made under the Act and must be dismissed. An order to this effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736837>

 1   As part of the Application, the Applicant also makes allegations against four individually named respondents (Jack Xu, Zhong Hua Zhu, Bin Xin, and Hou Ming Chu).

 2   Rui Liu v JHC Corporate P/L [2021] FWC 5345, at [96] (see also at [22] and [42]).

 3   Applicant’s written submissions filed 13 December 2021. I note that the Applicant also makes submissions going to the construction of ss. 725 and 729 of the Act. Having taken these submissions into account, I do not accept that they support the construction urged upon me by the Applicant.