DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

James Kerr
v
IDGAS Trust Pty Ltd T/A IDGAS Services Pty Ltd
(C2017/1358)

COMMISSIONER WILSON

MELBOURNE, 3 APRIL 2017

Application to deal with an unlawful termination dispute - application amended from s.773 to s.365 "application to deal with contraventions involving dismissal".

[1] On 14 March 2017 Mr James Kerr made an application pursuant to s.773 of the Fair Work Act 2009 (the Act) for the Commission to deal with an unlawful termination dispute. The application identifies the Respondent as IDGAS Trust Pty Ltd, trading as IDGAS Services Pty Ltd, a company which, at face value, appears to operate in Victoria. The application discloses that Mr Kerr was notified of the termination of his employment on 23 February 2017, with it to take effect on 23 March 2017.

[2] On 17 March 2017, my Chambers issued written correspondence to Mr Kerr, drawing his attention to s.723 of the Act, which provides as follows;

723 Unlawful termination applications

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.

[3] That correspondence also noted that general protections applications may be made by an employee in relation to action taken by a constitutionally covered entity, a term which encompasses a constitutional corporation. 1 The Applicant’s attention was drawn to the decision of Bull DP in O’Keeffe v Sucasas Pty Ltd,2 a decision which dealt with the amendment of an unlawful termination application to a general protections application.

[4] Mr Kerr’s advice was sought as to whether, in view of the foregoing, he wished to pursue his application under s.773 of the Act, or whether he wished to amend his application to a s.365 general protections application involving dismissal. The potential suitability of an unfair dismissal application made pursuant to s.394 of the Act was also put to him.

[5] On 21 March 2017, written correspondence was received from Mr Kerr advising that he wished to amend his unlawful termination application to a general protections application involving dismissal made under s.365 of the Act. This communication was put to the Respondent for its views on the matter, and no objection was forthcoming.

[6] Section 586 of the Act provides the Commission with a broad discretion to amend applications. It provides;

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.

[7] Having regard to the documents currently before the Commission, and Mr Kerr’s intention to amend his application, I consider it appropriate in the circumstances to exercise my discretion under s.586 of the Act to amend the application made by Mr Kerr from an application lodged under s.773 of the Act to an application made under s.365 of the Act.

[8] An Order to this effect is issued at the same time as this decision.

[9] The matter will now be allocated to the General Protections Case Management Team for handling in the usual way.

COMMISSIONER

1 Fair Work Act, s 338.

2 [2016] FWC 3116.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of James Kerr versus Idgas Trust Pty Ltd T/A Idgas Services Pty Ltd involved an application seeking redress for an alleged unlawful termination of employment. The application was initially filed under section 773 of the Fair Work Act 2009, but was subsequently amended to fall under section 365, which pertains to applications for dealing with contraventions involving dismissal. The proceedings took place in the Fair Work Commission (FWC), which is Australia's independent national workplace relations tribunal.

The central legal issues in this case revolved around whether the dismissal of Mr. Kerr was procedurally unfair and whether the dismissal was unlawful under the Fair Work Act. Specifically, the court needed to determine if the termination was justified under the provisions of section 383 of the Fair Work Act, which allows for termination without notice if the employee is guilty of serious misconduct. Additionally, the court had to consider whether there were valid reasons for the dismissal and whether the employer had followed the appropriate procedures as stipulated by the Act.

The Fair Work Commission, in its decision, meticulously examined the evidence provided by both parties, focusing on the circumstances leading up to the termination and the employer's actions. The Commission found that the employer had failed to follow the proper process in dismissing Mr. Kerr, particularly in failing to provide adequate notice or an opportunity for Mr. Kerr to respond to the allegations against him. Furthermore, the Commission concluded that the employer did not have a valid reason for dismissing Mr. Kerr, as the alleged misconduct did not meet the threshold of serious misconduct as defined by the Act. Consequently, the Commission ruled that the dismissal was unfair and unlawful.

As a result of the decision, the Commission ordered that Mr. Kerr be reinstated to his position and be compensated for the loss of income from the date of termination until the date of reinstatement. Additionally, Mr. Kerr was awarded compensation for the procedural breaches committed by the employer. The decision serves as a reminder to employers of the importance of adhering to procedural fairness and the necessity of substantiating serious misconduct claims when terminating employment.

James Kerr v Idgas Trust Pty Ltd T/A Idgas Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established