| FWC 744 [Note: An appeal pursuant to s.604 (C2014/247) was lodged against this decision - refer to Full Bench decision dated 12 June 2014 [ FWCFB 3582] for result of appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Lawless
Qantas Airways Limited
Mr David Lawless
Qantas Airways Limited
DEPUTY PRESIDENT BARTEL
ADELAIDE, 30 JANUARY 2014
Termination of Employment - jurisdictional objection - multiple applications
 David John Lawless (the applicant) has filed two applications seeking an unfair dismissal remedy. The first application filed on 26 June 2013 seeks an unfair dismissal remedy in relation to his purported dismissal by Qantas Airways Limited (Qantas or the respondent) on 11 June 2013 1. On 4 July 2013 Qantas advised the applicant’s solicitor that no dismissal had taken place. By letter dated 11 July 2013 Qantas advised the applicant of his dismissal, effective that day, with payment of 4 weeks pay in lieu of notice. The applicant then filed a second application for an unfair dismissal remedy2, based on the purported dismissal on 11 July 2013. For the purposes of this decision the two applications will be referred to as “the s.394 applications”.
 Qantas has raised two jurisdictional objections. The first objection arose in the context of an application to join the two s.394 applications. Qantas contended that, as only one dismissal took place, a hearing in respect to both applications would result in the Fair Work Commission (the Commission) exercising jurisdiction in respect of at least one application where no jurisdiction exists. In relation to this matter, I determined that the interests of efficiency would be served by hearing the s.394 applications concurrently and that the date of dismissal would be determined in that context. 3
The present proceedings
 This decision deals with the respondent’s second objection; namely, that the s.394 applications are statute barred by virtue of s.725 of the Fair Work Act 2009 (the Act). Section 725 and related provisions are found in Part 6-1 of the Act dealing with multiple actions. The introduction to this Part contains the following provision:
“719 Guide to this Part
This Part provides rules relating to applications for remedies under this Act.
Division 2 prevents certain applications where other remedies are available.
Division 3 prevents multiple applications or complaints in relation to the same conduct.”
 Subdivision B of Division 3 of Part 6-1 deals with applications and complaints relating to dismissal. The relevant sections are as follows:
“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.
(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.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
 The respondent contends that a Notice of Dispute filed by the applicant under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA), constitutes an application or complaint under another law in relation to the dismissal, in accordance with s.732 of the Act. It is common ground that the Notice of Dispute has not been withdrawn or failed for want of jurisdiction and that the s.394 applications are applications of a kind referred to in s.729 of the Act.
 The applicant accepts that the Notice of Dispute is an application or complaint under a law of a State, but argues that it is not “in relation to the dismissal” because the applicant was not dismissed or under notice of dismissal as at the date the Notice of Dispute was filed. Accordingly, it is argued that the Notice of Dispute does not fall within s.732 of the Act and there is no jurisdictional impediment to the determination of the s.394 applications arising from the terms of s.725 of the Act.
The relevant facts
 The facts on which the jurisdictional objection is based are not in dispute. An agreed Statement of Facts including a chronology of relevant events and associated documentation was provided to the Commission 4 and the matters contained therein are included in the following narrative.
 The applicant commenced employment with the respondent in December 1989 and from the 1990’s was employed as a full time Airline Service Operator (Baggage Handler). He suffered various work injuries in the course of his employment which precluded him from fulfilling his pre-injury employment as a Baggage Handler. He was provided with and performed suitable alternative duties from about mid-2007.
 By letter dated 14 March 2013, Employers Mutual Limited (EML or the compensating authority), as agent for the WorkCover Corporation of South Australia (the Corporation), advised the applicant that a decision had been made to return him to suitable employment with a new employer. The letter advised the applicant that the decision was based on his inability to return to his previous role and an absence of appropriate roles at Qantas within the applicant’s “physical and vocational capabilities”. The letter also advised that if suitable employment becomes available with Qantas or the applicant’s work capacity improves the decision may be revisited. 5
 On or about 8 May 2013, a Rehabilitation and Return to Work Plan (the RRTW Plan) 6 was approved by Corporation. The RRTW Plan is headed “Rehabilitation and Return to Work Plan - Different Employer” and had as its objective a return of to work on suitable duties with a host employer. The RRTW Plan had a commencement date of 30 April 2013 and a completion date of 30 July 2013. The RRTW Plan indicates that no “host employer” has been identified and that a request for a Vocational Assessment to determine suitable employment had been made.
 The RRTW Plan was established pursuant to s.28A of the WRCA, which provides that the Corporation must, in certain circumstances, prepare a Rehabilitation and Return to Work Plan. 7
 At a meeting between the applicant and Qantas on 14 May 2013, Qantas provided a letter informing him that it was reviewing his employment and was considering terminating his employment on medical grounds. The applicant was given the opportunity to provide further information. 8
 At the same meeting, Qantas provided a further letter to the applicant dated 10 May 2013. 9 The letter is headed “Re: Notice of proposed termination under section 58C of the Workers Rehabilitation and Compensation Act 1986 ...”, and includes the following passages:
“The purpose of this letter is to advise you of our intention to terminate your employment. Section 58C of the [WRCA] requires the employer to provide an injured worker with at least 28 days’ notice of the proposed termination of a workers’ (sic) employment.”
... in light of your ongoing restrictions, your inability to return to your pre injury role and our inability to identify alternative roles for you within Qantas, it is our intention to terminate your employment after the expiry of the 28 day notice period.”
 On 17 May 2013 the applicant filed a Notice of Dispute in the South Australian Workers Compensation Tribunal (the Tribunal) in relation to the RRTW Plan. 10 The Notice of Dispute was lodged pursuant to s.28B of the WRCA which relevantly provides:
“28B—Review of plan
(1) A worker or employer may apply for review of—
(a) a decision to establish or not to establish a rehabilitation and return to work plan; or
(b) a provision of a rehabilitation and return to work plan, on the ground that the decision or the provision is unreasonable.
(2) On review of a rehabilitation and return to work plan (or in consequent appellate proceedings), the plan may be modified to the extent necessary to ensure that the plan does not impose unreasonable obligations on the worker or the employer.
 The Notice of Dispute variously complains that the objective of the RRTW Plan to return the worker to a different employer is unreasonable and contrary to the objects of the WRCA and that Qantas has failed to comply with its statutory obligation to provide suitable employment. The Notice of Dispute also includes the outcome sought by the applicant, as follows:
“The worker seeks that the [RRTW Plan] be modified to include a provision that Qantas to employ (sic) the worker in suitable employment pursuant to the contract of employment. Alternatively the [RRTW Plan] contain a provision that Qantas employ the worker in suitable employment under a contract of employment.”
 As at 17 May 2013 when the applicant filed the Notice of Dispute, he had not been dismissed.
 For present purposes it is not necessary to determine whether the applicant was dismissed on 11 June or 11 July 2013. It is agreed that the dismissal of the applicant had taken effect by 11 July 2013.
 On 15 August 2013 the applicant filed a document in the Tribunal titled “Worker’s Second Statement of Issues”, which particularised the specific issues which the applicant contended were to be addressed by the Notice of Dispute. The issues included, “Whether the Plan should provide for rehabilitation services to be provided to the worker consistent with the objective of the provision by the employer of suitable work duties to the worker.” 11
 Shortly after the jurisdictional hearing concluded, a decision was handed down by His Honour Deputy President Judge PD Hannon on the Notice of Dispute filed by the applicant (the SAWCT decision). 12 The parties were given the opportunity to make further submissions, and did so on 16 and 17 December 2013.13
The SAWCT decision and the parties’ submissions
 A number of objections were raised by the respondent and EML concerning the jurisdiction of the Tribunal to deal with the Notice of Dispute. For present purposes it is sufficient to record that Hannon DPJ found that:
• A Notice of Dispute challenging the reasonableness of the return to work objective of the RRTW Plan was within the jurisdiction of s.28B of the WRCA; (at para 81)
• Section 28B does not specifically provide for a remedy upon a finding of unreasonableness - the Tribunal has discretion as to whether any modification should be made. The discretionary modification of a RRTW Plan would appear to lack utility where the disputed RRTW Plan has expired, but will have a practical outcome given the compensating authority’s obligation to establish ongoing rehabilitation and return to work plans under s.28A(2) of the WRCA; (at paras 81 and 82)
• A decision on the question of unreasonableness will be a determination of the dispute, regardless of whether any modification of the plan is ordered; (at para 82)
• Given the remedial nature of the WRCA, a narrow construction of the power of the Tribunal to “modify” a provision of the plan should not be imposed. His Honour stated that:
“However, in practical terms, it may be difficult for a Tribunal, on finding that a changed objective of a Plan is unreasonable, to proceed to effect appropriate modifications .... It may be more appropriate to leave it to the compensating authority to establish another Plan having regard to the findings of the Tribunal.” (at para 98)
 Hannon DPJ set out the factual background to the matter, including the history of the work undertaken by the applicant at Qantas over the period of his injuries and the events leading to the filing of the Notice of Dispute. He held that the return to work objective of the RRTW Plan - to return the worker to suitable work with a different employer - was, in the circumstances, unreasonable. (at para 148)
 Hannon DPJ then made obiter observations as to what flows from his finding of unreasonableness. He noted that if the compensating authority established a plan which was not unreasonable in the manner identified, the issue may arise as to whether Qantas should re-employ the applicant. He stated that:
“The worker in this case did not seek any order in this respect if I found in his favour, and properly so, for my further consideration of that issue, albeit without hearing any detailed submissions, leads me to doubt that the proposition is even arguable. Whether re-employment should ultimately occur is a matter to be addressed, if needs be, between the compensating authority and Qantas.” (at para 151) (footnotes deleted)
 Mr Warren, of counsel for the applicant, submitted that the SAWCT decision and order supported the applicant’s argument that the Notice of Dispute concerned the reasonableness of the Plan and was not “in relation to the dismissal” of the applicant. The dispute as the reasonableness of the Plan was independent of whether an employment relationship existed between the applicant and Qantas.
 Mr Woodbury, of counsel for the respondent, advised that the SAWCT decision was under appeal from both the respondent and the compensating authority, where it will be argued that the SAWCT decision should be set aside and the applicant’s Notice of Dispute should be dismissed.
 Mr Woodbury submitted that the SAWCT decision made it clear that:
• The Plan was inconsistent with the applicant’s ongoing employment with Qantas and the applicant was aware of this fact; (at paras 34, 52 and 53)
• The Notices of Dispute were filed by the applicant in anticipation of his dismissal; (at paras 44 and 89)
• The remedy sought by the applicant 14 was to the effect that the Plan be modified to include a provision that the respondent employ him pursuant to the contract of employment. This supports the respondent’s contention that the Notice of Dispute was “in relation to the dismissal”.
• The SAWCT decision makes factual findings that go directly to the matters that the Commission will be required to consider and it contemplates that a further determination will be made affecting the applicant’s employment status with Qantas. This reinforces the respondent’s primary submissions (set out below) that there is a potential for conflict between the decision in the workers compensation proceedings and the decision on the s.394 applications.
The primary submissions
 Mr Woodbury and Mr Warren provided written submissions in advance of the jurisdictional hearing that were supplemented by oral submissions at the hearing. I have taken all the submissions into account and a summary of the arguments of the parties is set out below. A number of decisions were referred to by the parties which will be canvassed in my consideration.
 Mr Woodbury submitted that if the Notice of Dispute and the s.394 applications were determined, it is possible that the applicant would obtain two remedies in relation to the same conduct, which is the mischief that Part 6-1 of the Act is intended to prevent. Mr Woodbury also suggested that if the Notice of Dispute and s.394 applications proceed to a determination, the respondent could potentially face two opposing outcomes, with one or more orders unable to be complied with. He gave the example of a determination by the Commission that the applicant be reinstated and a determination by the WCT that there are no suitable duties available for the applicant to perform.
 Mr Warren submitted that the Notice of Dispute could not be “in relation to the dismissal” because the applicant had not been dismissed at the date that it was filed, and that the critical point in the operation of the s.725 and related provisions is when the applications are made. He contended that the words “in relation to dismissal” should be given their ordinary meaning and should not be broadened so as to encapsulate a threatened or anticipated dismissal. It was further argued that, as the applicant was not “a person who has been dismissed” at the time the Notice of Dispute was filed, the general rule in s.725 of the Act does not apply.
 Mr Warren noted that the RRTW Plan was a statutory notice issued by the Corporation and it contained no reference to a dismissal. The Notice of Dispute concerned the reasonableness of the RRTW Plan, and the relief sought by the applicant was the continuation of the existing contract of employment rather than re-employment. It was submitted that the fact that the applicant was dismissed after he filed the Notice of Dispute could not change the characterisation of the Notice of Dispute at the time it was filed.
 In reply, Mr Woodbridge argued that the applicant’s submission, that the Notice of Dispute could not be in relation to the dismissal because the applicant had not been dismissed, represented an impermissible narrowing of the inquiry of the Commission in terms of ascertaining whether the proceedings are in relation to the dismissal. He submitted that a broad perspective should be taken of the phrase “in relation to dismissal” and that it should not be read down in the absence of compelling reasons to do so.
 The purpose of s.725 of the Act is to limit a person to a single remedy where more than one remedy is available for the same conduct in relation to a dismissal. In all cases the anti-double dipping provisions will not apply where the initial application has been withdrawn or failed for want of jurisdiction. 15
 I interpose that the respondent’s foreshadowed argument in its appeal on the SAWCT decision that the workers compensation proceedings should be dismissed, potentially creates some difficulty in the context of its present argument that the s.394 applications should be dismissed. Should I be persuaded by the respondent’s arguments in the present jurisdictional argument I would not be inclined to dismiss the applications at this point in time in any event, lest the applicant be left with no available remedy in relation to his dismissal.
 In support of his submission that the applicant’s circumstances are not caught by s.725 of the Act because he was not “a person who has been dismissed” at the time that he filed the Notice of Dispute, Mr Warren relied upon two decisions. Miles v Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture, (Miles) 16 concerned an objection by the respondent to the s.394 application proceeding to a hearing. Several grounds were relied upon by the respondent in Miles, including that the application was statute barred under the provisions of Part 6-1 of the Act because of a workers’ compensation claim made by Ms Miles.
 The relevant facts in Miles are that the s.394 application was made well in advance of the workers compensation claim. Commissioner Hampton, in the passage relied upon by Mr Warren, states:
“ Even if the [WRCA] claim was an application within the meaning of s.732 of the Act, it was made after the lodgement of the unfair dismissal matter. I have found that that application remains on foot and accordingly, s.725 would not operate in relation to the unfair dismissal application. It does not matter that the [WRCA] claim refers to matters at the time of the dismissal. The critical points in the operation of s.725 and related provisions are when applications are made.” (footnote deleted)
 The Commissioner in this passage, in my view, is addressing the operation of s.725 in relation to which of the applications or complaints of a kind referred to in any of the sections 726 to 732, is statutorily barred. The point being made by the Commissioner is that the timing of the relevant applications is critical in this regard and that, in the matter before him, the s.394 application predated the workers compensation claim. That is, the prohibition in s.725 relates to the second application or complaint of a kind to which ss.726 to 732 of the Act applies, and in Miles the second application was the workers compensation application.
 The second decision relied upon by Mr Warren was McCulloch v Preshil, The Margaret Lyttle Memorial School (Preshil). 17 Ms McCulloch’s substantive application was a General Protections Court application, seeking a declaration that the respondent contravened s.340 of the Act by taking adverse action against her. Preshil concerns an application by Ms McCulloch for interlocutory relief restraining the employer from treating as valid the purported termination of her employment. As such, the tests for the grant of interlocutory relief were applied.18
 There was a factual dispute between the parties as to whether Ms McCulloch resigned in the course of a meeting with officers of the employer on 9 September 2011. Ms McCulloch subsequently emailed the employer to confirm she was not resigning. She filed an application for an unfair dismissal remedy on 23 September 2011. In a letter dated 26 September 2011, the employer advised her that it was accepting her resignation and that if there was no resignation her employment was terminated on 3 months’ notice.
 The employer contended that there was no serious issue to be tried because of the effect of s.725 of the Act. Having brought an application pursuant to s.394 of the Act, it argued that there was no jurisdiction to hear the applicant’s General Protections Court application.
 In considering this submission, His Honour Judge Marshall stated that:
“The difficulty with that submission is that the application to the [Commission] was made on 23 September 2011. The letter of 26 September 2011 which pressed reliance on Ms McCulloch’s resignation and purported to dismiss her in the alternative post-dated that application. The evidence does not support a dismissal as at 23 September 2011. At its highest it supports the existence of a possible threatened dismissal. There is at the very least a serious issue to be tried as to the inapplicability of s 725 to the current application before the Court.” 19
 It is apparent from this passage that His Honour placed significance on the fact that a dismissal had not occurred at the time the s.394 application was filed. Given the nature of the proceedings His Honour did not discuss in any detail the relevant provisions of the Act. His conclusion that there was “at the very least a serious issue to be tried” may be supportive of, but is not a concluded view on the proposition advanced by Mr Warren. Importantly, the fact that the s.394 application was filed in advance of the dismissal raised serious jurisdictional issues about the competency of that application. 20
 I have previously held that s.725 has an ambulatory operation, in that it is to be applied to the facts as they exist at the point in time when the section falls to be determined. 21 In applying s.725 to the facts of the present case; the applicant is a person who has been dismissed and he has filed an application or complaint of a kind referred to in s.729 of the Act.
 Even if this view is not correct, I am still unable to accept the position put by Mr Warren. The reference in s.725 to “a person who has been dismissed” is made in the context of the second application or complaint of a kind referred to in ss.726 to 732 of the Act; in this case the s.394 applications falling within s.729 of the Act. There is no contest that the applicant was “a person who had been dismissed” at the time of the filing of at least one of the s.394 applications.
 The phrase “a person who has been dismissed” does not appear as a qualifier in any of the sections 726 to 732, which in each case refer to an application or complaint of the respective type being made “by the person in relation to the dismissal”.
 Consequently I am unable to accept Mr Warren’s argument on this point. Accordingly, the issue that falls for determination is whether the Notice of Dispute is an application “in relation to the dismissal”.
“In relation to”
 I was referred to the case of Birch v Wesco Electrics (1966) Pty Ltd (Birch), 22 which contains a comprehensive analysis of decisions concerning the meaning of the words “in relation to”. Birch involved consideration of Subdivision 3 of Part 6-1 in circumstances where Ms Birch had made a General Protections Court application on 4 May 2011 in relation to her dismissal, and subsequently made a complaint to the Commissioner for Equal Opportunity under the Equal Opportunity Act 1984 (WA) (the EO Complaint).
 As part of his consideration, His Honour FM Lucev, stated:
“That the expression ‘in relation to’ gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression. The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of ‘in relation to’ in the specific circumstances presently before the Court. Context is also important to a consideration of whether the relationship need be:
a) direct or substantial;
b) indirect or less than substantial;
c) affecting one term of the relationship; or
d) affecting all of the terms of the relationship.
In Tooheys 23 the ‘vital question’ was said to be “whether the instrument ‘relates’ and not whether it may be ‘related’ by an examination of extraneous circumstances”.
The phrase ‘in relation to’ does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship ‘must lie within the bounds of relevance to the statutory purpose’.
The statutory purpose for which s.725 of the FW Act was enacted was to prevent an applicant, having filed an application or complaint of one type in relation to their dismissal, from filing an application or complaint of another type in relation to their dismissal. Applied to the present context, it is to prevent an applicant having filed a general protections court application in relation to their dismissal in this Court, from lodging an equal opportunity complaint in relation to their dismissal under a State equal opportunity law. The statutory purpose, put simply, is to limit an applicant to a single remedy.” 24 (footnotes deleted)
 Lucev FM stated that the issue to be determined in the matter before him was whether Ms Birch’s EO Complaint was “in relation to” the dismissal. His Honour held that it was, and set out the following rationale: 25
“The content of the EO Complaint and the Application make manifest the direct link between them. They both relate to, and seek to have, on the one hand, the EO Commissioner, and on the other, this Court, deal with Ms Birch’s dismissal, and in both instances it is alleged, on essentially the same factual basis, discrimination on the basis of age and sex resulting in Ms Birch’s dismissal from her employment with Wesco Electrics. The EO Complaint also alleges discrimination arising from sexual harassment, and although sexual harassment is not a specified head of discrimination for the purposes of adverse action under s.351 of the FW Act, the Application clearly identifies alleged sexual harassment of Ms Birch, and sexual harassment can constitute sex discrimination where a statute proscribes sex discrimination but does not mention sexual harassment. Therefore, there is a direct relationship between the Application and the EO Complaint. The directness of that relationship is, having regard to the statutory intent behind s.725 of the FW Act, more than sufficient to establish that the EO Complaint is ‘in relation to’ the dismissal the subject of the Application.” (footnote deleted)
Is the Notice of Dispute in relation to the dismissal?
 The Notice of Dispute was filed subsequent to the applicant having been advised by Qantas on 14 May 2013 that it “proposed” to terminate his employment after the expiry of the 28 day notice provided in accordance with s.58C of the WRCA. Whether this advice constituted a notice of termination is the subject of some dispute between the parties, although it was sufficient for the applicant to file the first of the s.394 applications alleging a dismissal on 11 June 2013, being 28 days after 14 May 2013. The provision of the s.58C notice at the same time as Qantas gave the applicant the letter advising that it was “considering” terminating his employment may have created some confusion. At the least however, at the time that the applicant filed the Notice of Dispute it was clear that Qantas intended to terminate his employment on the basis that he was unable to perform his pre-injury role and there were no suitable alternative duties for him to perform. 26 This is a relevant consideration.
 It is also relevant that the applicant had not been dismissed at the time the Notice of Dispute was filed and that the RRTW Plan was prepared by the Corporation in accordance with its rehabilitation obligations, rehabilitation being a fundamental plank on which the WRCA is based. 27
 The Notice of Dispute was filed because the applicant opposed the RRTW Plan objective that he returns to work with a different employer performing different duties. There is a connection between the RRTW objective and Qantas’ decision that the applicant would be dismissed, since both emanate from Qantas having been relieved of the obligation to provide suitable employment to the applicant, as per the letter dated 14 March 2013 from the compensating authority. As Hannon DPJ noted, the decision of the compensating authority on 14 March 2013 “... implicitly approved the proposal of Qantas that it no longer be obliged to provide suitable employment to the worker on the ground that it was no longer practicable to do so, and that it was at liberty to terminate his employment for that reason ...”. 28
 The s.394 applications rely, among other things, upon an alleged breach of the respondent’s statutory obligations pursuant to s.58B of the WRCA. Subsection 58B(1) imposes a duty on the employer to provide suitable employment, and specifies a monetary penalty for any breach. Section 58B of the WRCA provides:
“58B—Employer's duty to provide work or pay wages
(1) If a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).
Maximum penalty: $25 000.
(2) Subsection (1) does not apply if—
(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or
(b) the worker left the employment of that employer before the commencement of the incapacity for work; or
(c) the worker terminated the employment after the commencement of the incapacity for work; or
(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.
(3) If a worker who has been incapacitated for work in consequence of a compensable injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.”
 The other grounds of the s.394 applications go to matters of procedural fairness as well as asserted breaches by Qantas of various entitlements or conditions available to the applicant at or before termination.
 The asserted breaches can be pursued through other avenues. The procedural fairness argument is not a feature of the Notice of Dispute, nor could it be given the timing of the application. A significant plank of the applicant’s case concerning the unfairness of his dismissal, on the basis of the Form F2 at least appears to be that the respondent was able to provide suitable duties for him.
 The Notice of Dispute and the s.394 applications are substantially connected by the same factual basis. In determining the s.394 applications, the Commission is required to take into account a range of factors as set out in s.387 of the Act. One of these factors, and arguably the most significant of the factors in s.387, is whether there was a valid reason for dismissal connected to the capacity or conduct of the employee. This will require the Commission to make a finding as to whether Qantas had suitable duties available within the physical and vocational capacity of the applicant.
 This exercise has a degree of overlap with the issue that the Tribunal was required to determine. The Notice of Dispute complained that the RRTW Plan objective of employment with a different employer was unreasonable, which Hannon DPJ accepted on the basis that Qantas had not taken appropriate steps to ascertain whether it had suitable employment available for the applicant to perform.
 Whatever the level of commonality in the factual underpinning of the different applications it is noted that the conduct complained of by the applicant is, in relation to the Notice of Dispute, the unreasonableness of the RRTW Plan; and in relation to the s.394 applications, is the termination his employment.
 In Birch, the relationship between the EO Complaint and the dismissal was clear. Lucev FM found that the dismissal was a common feature of the adverse action application and the EO Complaint and both sought that the dismissal be dealt with by the respective tribunals, i.e. the applicant sought two remedies in relation to the same conduct.
 In the present case I consider that the relationship between the Notice of Dispute and the dismissal, while not remote in light of the relevant factual basis, is nonetheless not sufficiently direct or substantial such that the Notice of Dispute can be said to be “in relation to the dismissal”. It is persuasive in my view that no dismissal had actually occurred at the time that the Notice of Dispute was filed and that the Notice of Dispute is a complaint or application in relation to a document developed by the Corporation in accordance with the requirements of the WRCA.
 The SAWCT decision confirms the true nature of the Notice of Dispute. It is not a determination in relation to the dismissal, but a determination concerning the reasonableness of the RRTW Plan having regard to the steps taken by Qantas in the context of the rehabilitation requirements of the WRCA.
 Mr Woodbury’s argument that there is a potential for conflict in the factual findings of the Tribunal and the Commission is a legitimate point, although this would not be the first time that different tribunals were required to make findings in relation to the same factual contest. However I am not persuaded by the respondent’s argument that there is a potential for conflict in the remedy awarded by the Tribunal and the Commission. I am unaware of any authority that stands for the proposition that the Tribunal can order Qantas to re-employ a worker or award compensation in relation to a notified dispute. As Hannon DPJ noted, if re-employment was required to make reasonable the RRTW Plan, then this would be addressed between the compensating authority and Qantas.
 The respondent’s second jurisdictional objection is dismissed. A Notice of Listing for a Directions conference in relation to the determination of the s.394 applications is attached to this decision.
Mr J Warren, counsel for the Applicant
Mr S Woodbury, counsel for the Respondent
15 November 2013
Final written submissions:
16 December and 17 December 2013
3 Statement and Directions dated 18 October 2013
4 Exhibit R1
5 This letter was provided to the Commission as an attachment to the applicant’s affidavit in the proceedings on Qantas’ first objection.
6 Exhibit R1 Annexure 1
7 Pursuant to s.63 of the WRCA, certain powers of the Corporation can be delegated to a self insured employer, including the powers and discretions under s.28A of the WRCA.
8 Exhibit R1 Annexure 2
9 Exhibit R1 Annexure 4
10 Exhibit R1 Annexure 3; Action number 2276/2013. There applicant had in fact filed an earlier Notice of Dispute in the WCT regarding the same subject matter, but it is not relevant for the purposes of this decision.
11 Exhibit R1 Annexure 5
12 Lawless v Qantas Airways Limited and Anor,  SAWCT 40
13 Applicant’s Supplementary Submissions, filed 16 December 2013; Respondent’s submissions regarding the SAWCT decision, filed 17 December 2013
14 In the Notice of Dispute at least.
15 Explanatory Memorandum to the Fair Work Bill 2008 at paras 2695 - 2711
16  FWC 1394
17  FCA 1218
18 Ibid, at para 3
19 Ibid, at para 13
20 The s.394 application was withdrawn by Ms McCulloch on the second day of the hearing, ibid at para 11.
21 Cook v ACI Operations Pty Ltd,  FWA 3715 at 
22  FMCA 5
23 Tooheys Limited & Ors v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 614, 620-621
24 Birch at paras 72 - 75
25 Ibid at para 81
26 At para 89 of the SAWCT decision, His Honour finds that on 2 May 2013 the applicant “... well knew the objective of the proposed Plan had changed to relieve Qantas of any continuing obligation to provide him with suitable employment, with the result that his employment with Qantas would end. He was very unhappy, upset and disappointed”.
27 SAWCT decision at para 56
28 SAWCT decision at para 71
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