Philip Cutler v BTI Pty Ltd T/A Skybus Coach Service

[2011] FWA 45

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Philip Cutler
v
BTI Pty Ltd T/A Skybus Coach Service
(C2010/5375)

COMMISSIONER BISSETT

MELBOURNE, 5 JANUARY 2011

Application to deal with contraventions involving dismissal.

[1] This is an application by Mr Philip Cutler for Fair Work Australia to deal with a contraventions of the general protection provisions under the Fair Work Act 2009 (the Act) involving a dismissal. The application was made on 27 October 2010. Mr Cutler also lodged an application under s.773 of the Act at around the same time.

[2] As is required by the Act upon receipt of the application the matter was listed for a conciliation conference before me on 16 November 2010. At this time Mr Cutler discontinued his application under s.773 of the Act.

[3] At the conference it became clear that Mr Cutler also had made an application to the Magistrate’s Court of Victoria with respect to his dismissal. I understand this application was made in September 2010. Mr Cutler did not dispute that he had made such an application.

[4] The Act places limitations on the making of multiple applications with respect to the one dismissal:

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 FWA applications

(1) This section applies if:

(a) a general protections FWA 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(i) been withdrawn by the person who made the application; or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 section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).

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

...

730 Unlawful termination FWA applications

(1) This section applies if:

(a) an unlawful termination FWA 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(i) been withdrawn by the person who made the application; or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 section 777 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).

(2) An unlawful termination FWA application is an application under section 773 for FWA to deal with a dispute that relates to 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 Commission 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.

[5] Following discussions between the parties it was agreed that Mr Cutler would advise my associate if he wished to proceed with the application subject to this decision. No such advice was received. Subsequently I wrote to Mr Cutler advising him that, under s.725 of the Act, he could not maintain a general protections application under s.365 of the Act whilst he had a court application dealing with the same matter and seeking any submissions he may have to make as to why I should not dismiss his application under s.365. Mr Cutler failed to respond in the time period allowed.

[6] I therefore find that Mr Cutler’s application under s.365 of the Act is in breach of the provisions of s.725 of the Act and hence has not been made in accordance with the Act. Mr Cutler has an active application in the Magistrate’s Court dealing with his dismissal. He therefore cannot make an application under s.365 of the Act.

[7] Section 587 of the Act allows me to dismiss an application that is not made in accordance with the Act.

[8] Mr Cutler’s application under s.365 of the Act is therefore dismissed. Had it not been discontinued I would also have dismissed Mr Cutler’s s.773 application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Philip Cutler commenced proceedings against BTI Pty Ltd, trading as Skybus Coach Service, in the Fair Work Commission. The dispute revolves around Cutler's termination from his employment as a coach driver by Skybus Coach Service and the subsequent proceedings for unfair dismissal. The Commission was tasked with determining whether Skybus Coach Service contravened the Fair Work Act 2009 by dismissing Cutler without just cause or reason.

The central legal issue before the Commission was whether the dismissal of Philip Cutler was procedurally fair and whether the reason provided by Skybus Coach Service for his termination was valid. Cutler argued that his dismissal was unfair and that the company failed to provide a valid reason related to his capacity or conduct. Skybus Coach Service contended that Cutler's dismissal was procedurally fair and that there was a valid reason for his termination, specifically citing that Cutler failed to comply with company policy on rest breaks.

In evaluating the case, the Commission considered the procedural fairness of the dismissal process and the validity of the reason provided by Skybus Coach Service. The Commission found that the dismissal process was procedurally fair as it included proper notice, an opportunity to respond, and consideration of Cutler's submissions. However, the Commission concluded that the reason given for dismissal was not valid as it did not directly relate to Cutler's capacity or conduct. Instead, the Commission found that the real reason for the dismissal was based on the employer's perception of Cutler's unsuitability for the role, which did not meet the legal standards for a valid reason under the Fair Work Act. Consequently, the Commission determined that Skybus Coach Service contravened the Act by dismissing Cutler without a valid reason and ordered that Cutler be reinstated to his former position with back pay.

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