Daniel Whipps v Tasmania's Own Redline

[2018] FWC 2611

[2018] FWC 2611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Daniel Whipps
v
Tasmania’s Own Redline
(C2018/1567)

COMMISSIONER LEE MELBOURNE, 11 MAY 2018

Application to deal with an unlawful termination dispute.

[1] On 23 March 2018 Mr Daniel Whipps (the Applicant) made an application pursuant to s.773 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with an unlawful termination dispute. The Applicant listed the Respondent to the application as Tasmania’s Own Redline (the Respondent) with his termination of employment taking effect on 22 March 2018.

[2] The Applicant made the application within 21 days of the date of his dismissal.

[3] On 3 April 2018 the Respondent filed a Form F9A Employer Response to the application and did not object to the application on a jurisdictional basis.

[4] I conducted a conference in the matter on 11 April 2018 and the dispute was not resolved. Having considered the materials in this matter, I indicated to the parties at the conference that it was not apparent why a s.773 application was made rather than a s.365 application. The Applicant is a national system employee.

[5] Section 723 of the 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. This is because the general protections and unlawful termination provisions cover the same grounds relating to when a dismissal is for a prohibited reason.

[6] Following the conference correspondence was sent from my chambers asking the Applicant to advise if he seeks that the Commission exercise its powers under s.586 of the Act to amend the s.773 application to be an application under s.365 of the Act. On 12 April 2018, written correspondence was received from the Applicant advising that he wished to amend his s.773 application to an application made under s.365 of the Act. This correspondence was provided to the Respondent and their views were sought. The Respondent provided a response stating that they sought to have the matter resolved under the current application and provided submissions which largely addressed the merits of the application.

[7] Section 586 of the Act provides the Commission with a broad discretion to amend applications. It provides as follows:

“586 Correcting and amending applications and documents etc

The FWC may:

(a) Allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) Waive an irregularity in the form or manner in which an application is made to the FWC.”

[8] In the circumstances and in accordance with the discretion I am granted under s.586 of the Act I consider it appropriate to amend the application made by Mr Whipps from an application made under s.773 of the Act to an application made under s.365 of the Act.

[9] An order will be issued concurrently with this decision.

[10] I note that having conducted a conference to deal with the dispute on 11 April 2018 I am satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. The Commission will issue a certificate under s.368 of the Act and the file will be closed.

COMMISSIONER

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