Manuel Pereira v Amigos Restaurant

[2010] FWA 9735

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Manuel Pereira
v
Amigos Restaurant
(C2010/5581)

COMMISSIONER GOOLEY

MELBOURNE, 16 DECEMBER 2010

[1] Mr Manuel Pereira lodged an application pursuant to section 773 of the Fair Work Act 2009 (“the FW Act”) on 18 November 2010. Mr Pereira alleged that his employment with Amigos Restaurant (“the respondent”) was terminated because he was temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

[2] In Maher v Mulgowie Fresh Pty Ltd 1 Collier J dealt with an application for summary dismissal of an application made under section 773 of the FW Act. In that matter it was accepted that Mr Pereira should have commenced proceedings under section 365 of the FW Act as national system employees are required to commence proceedings under Part 3-1 of the FW Act.

[3] This statement is generally true however a national system employee excluded from bringing an application under Part 3-1 of the FW Act for example because of section 351(2)(a) may be able to bring an application under section 773.

[4] Mr Pereira is a national system employee and should have commenced this proceeding under section 365 of the FW Act.

[5] A conference was held on 6 December 2010 which did not resolve the matter. At that conference Mr Pereira made an application to amend his application to an application pursuant to section 365 of the FW Act.

[6] The respondent in this matter has consented to Mr Pereira amending his application and therefore pursuant to section 586 of the FW Act the amendment is allowed.

[7] As a conference conducted on 6 December 2010 did not resolve the matter a certificate will be issued certifying that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

COMMISSIONER

1 [2010] FCA 439

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CaseChat Overview and Summary

In the case of Manuel Pereira v Amigos Restaurant, the applicant, Mr Manuel Pereira, sought a review of the decision made by the Fair Work Commission. Mr Pereira claimed that his employment with the respondent, Amigos Restaurant, was terminated due to his temporary absence from work due to illness or injury. The matter was heard in the Federal Circuit Court of Australia. The applicant argued that his dismissal was unfair and unlawful, as it contravened provisions of the Fair Work Act 2009. The legal issues before the court were whether the applicant's dismissal was valid under the Act and whether there were any procedural or substantive errors in the Commission's decision.

The court considered the applicant's argument that his absence from work was protected under the Fair Work Act. The court examined the provisions of the Act and the regulations to determine whether the applicant's absence was covered by the prescribed illness or injury. The court also evaluated the evidence presented by both parties to determine whether the applicant's dismissal was justified and if the respondent had followed the correct procedures. The court found that the applicant's dismissal was not covered by the provisions of the Act, as his absence was not due to a prescribed illness or injury. Furthermore, the court determined that there were procedural errors in the Commission's decision, which led to an unfair outcome for the applicant.

Based on the court's findings, the decision of the Fair Work Commission was set aside, and the matter was remitted back to the Commission for reconsideration. The court ordered that the Commission should review the applicant's dismissal in light of the correct legal principles and ensure that all procedural fairness was observed. The court did not make any further orders regarding the applicant's employment or any compensation for the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established