ADAM v APPLE PTY LTD

[2012] FMCA 881

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ADAM v APPLE PTY LTD [2012] FMCA 881

INDUSTRIAL LAW – Application made pursuant to s.773 of the Fair Work Act 2009 – applicant entitled to make general protections application – application summarily dismissed for want of jurisdiction.

Fair Work Act 2009, ss.337, 338, 339, 340 (1), 342(1), 343(1), 344, 345, 365, 369, 371, 723, 725, 727, 729, 731, 772(1), 773, 777, 779

Hill v Compass Ten Pty Ltd [2012] FCA 761
Newman v East Yarra Friendly Society Pty Ltd trading as My Chemist Pharmacy [2011] FCA 1262

Applicant: NEMO KEVIN ADAM

Respondent: APPLE PTY LTD

File Number: MLG 315 of 2012

Judgment of: Whelan FM

Hearing date: 19 September 2012

Date of Last Submission: 19 September 2012

Delivered at: Melbourne

Delivered on: 19 September 2012

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Jacobs

Solicitors for the Respondent: Baker and McKenzie

ORDERS

1. That the Application filed 21 March 2012 is summarily dismissed.

2. That the Directions hearing on 19 November 2012 is vacated.

3. That the Mediation before Registrar Caporale on 2 November 2012 is vacated.

4. That there is no Order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 315 of 2012

NEMO KEVIN ADAM

Applicant

And

APPLE PTY LTD

Respondent

REASONS FOR JUDGMENT

1. On 21 March 2012 the Applicant made an application in the Fair Work Division of this Court. The application was accompanied by a Certificate issued by Fair Work Australia (“FWA”) under s.777 of the Fair Work Act 2009 (“the Act”).

2. The Certificate refers to an application by Mr NEMO KEVIN ADAM (“the Applicant”) pursuant to s.773 of the Act alleging a dismissal in contravention of s.772(1) of the Act.

3. The claim lodged with the application to the Court alleges that the termination was unlawful as one or more of the following reasons applied:

   ·temporary absence from work because of illness or injury of the kind prescribed by the regulations;

   ·the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

   ·race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

   ·other.[1]

   [1] Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment, Part G, Question 24, page 4.

4. In the details of the claim provided, the Applicant alleges that the Respondent contravened Part 3-1 (General Protections) of the Act and in particular s.340(1), s.342(1), s.343(1), s.344 and s.345 of the Act.

   ·Section 340(1) of the Act relates to the taking of adverse action against a person in relation to a workplace right.

   ·Section 342(1) of the Act defines adverse action.

   ·Section 343(1) of the Act relates to coercion associated with the exercise of a workplace right.

   ·Section 344 of the Act concerns the exerting of undue influence in relation to various rights of an…