Adam Espiner v Web Marketing Experts Pty Ltd T/A Web Marketing Experts
[2010] FWA 3927
•24 MAY 2010
[2010] FWA 3927 |
|
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Adam Espiner
v
Web Marketing Experts Pty Ltd T/A Web Marketing Experts
(C2010/2806)
COMMISSIONER GOOLEY | MELBOURNE, 24 MAY 2010 |
Application to deal with an unlawful termination dispute – application dismissed.
[1] This application pursuant to s.773 of the Fair Work Act 2009 (the Act) was made by Mr Adam Espiner alleging he was dismissed by Web Marketing Experts Pty Ltd T/A Web Marketing Experts in contravention of s.772(1) of the Act.
[2] Fair Work Australia conducted a conference to deal with the dispute on 15 March 2010. Both Mr Adam Espiner and Mr Nicholas Bell from Web Marketing Experts Pty ltd attended the conference. The matter did not resolve at the conference.
[3] On 29 March 2010 I forwarded a letter to Mr Espiner advising him of the provisions of section 773 of the Act namely:
“A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections application in relation to the conduct”.
[4] I advised him that as he was entitled to make a general protections court application he could not make an unlawful termination application. I further advised him that he could make an application under section 365 and he should do so by 5 April 2010 to be within the limitation period for such an application.
[5] Despite numerous communications between my chambers and Mr Espiner no application under section 365 was filed with Fair Work Australia.
[6] On 7 May 2010 I forwarded a letter for Mr Espiner as follows:
“I refer to your application pursuant to section 773 of the Fair Work Act 2009 and my letter dated 29 March 2010.
Section 723 of the FW Act provides that:
“A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
Your application under section 773 alleged that your employment was terminated while you were sick. Whilst you did not specify the specific provision of section 772(1) you rely upon, it appears that you rely upon section 772(1)(a) namely:
“Temporary absence from work because of illness or injury of a kind prescribed by the regulations.”
As your employer is a federal system employer you were able to bring a general protections application. In particular section 352 of the FW Act provides that:
“An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
I have therefore formed the preliminary view that your application must be dismissed and that there is no jurisdiction to issue the certificate pursuant to section 777. Prior to making a decision on this matter I will provide you with an opportunity to put forward any submissions you wish to make on this issue.
I advise this matter has been listed for hearing on 20 May 2010 at 10.00 am.”
[7] Fair Work Australia conducted a hearing to deal with this matter on 20 May 2010. Only Mr Bell attended the hearing. There was no appearance by Mr Espiner.
[8] In Maher v Mulgowie Fresh Pty Ltd 1 the respondent had filed a notice of motion to strike out Mr Maher’s application. Mr Maher had made an application pursuant to s773 of the Act and a certificate pursuant to section 777 had been issued by Fair Work Australia. The respondent relied on section 723 of the Act and argued that Mr Maher’s application was bound to fail. The Federal Court granted leave for the applicant to amend his application to the court to allege contravention of section 351 of the Act. In granting leave to amend Collier J noted that the Applicant “fell into error in respect of the legislative basis of his application….this error was not drawn to his attention by Fair Work Australia which issued a certificate pursuant to section 777.”
[9] By contrast in this matter Mr Espiner’s error was drawn to his attention in sufficient time for him to lodge an application under section 365 and he chose not to do so.
[10] I am therefore required to determine if I have the jurisdiction to issue a certificate under section 777. Mr Espiner is a national system employee and he was entitled to make an application under section 365 of the Act. Therefore due to the operation of section 723 of the Act, Mr Espiner was not able to make the application he made and I must therefore dismiss the application.
COMMISSIONER
1 [2010] FCA 439
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