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

Printed by authority of the Commonwealth Government Printer

Daniel Whipps filed an application against Tasmania's Own Redline, seeking a remedy for an alleged unlawful termination of his employment. The matter was heard in the Fair Work Commission (FWC). The central issue before the FWC was whether the dismissal of Mr Whipps was justified or if it constituted an unfair termination. The applicant contended that his termination was unjust, asserting that it was not based on valid reasons and that the process leading to the dismissal was flawed. Tasmania's Own Redline argued that the dismissal was lawful, asserting that Mr Whipps' termination was based on valid reasons, such as misconduct, and that the proper procedures were followed.

The FWC examined the evidence and arguments presented by both parties, focusing on the circumstances surrounding the termination. The Commission considered whether the employer had a valid reason for dismissing Mr Whipps and whether the termination process complied with relevant employment laws. The FWC determined that while the employer did have a basis for the termination, the process was not conducted in a manner that met the legal standards for fairness. Consequently, the FWC found that the termination was unlawful due to procedural shortcomings, despite the existence of a valid reason for dismissal.

As a result of the findings, the FWC ordered that Mr Whipps be reinstated to his former position and that Tasmania's Own Redline compensate him for the period of lost wages. The FWC also directed that appropriate measures be taken to ensure compliance with employment laws in future disciplinary actions. The decision underscores the importance of adhering to procedural fairness in termination processes, even when the underlying reason for dismissal may be valid.

Daniel Whipps v Tasmania's Own Redline

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established