Manuel Pereira v Amigos Restaurant
[2010] FWA 9735
•16 DECEMBER 2010
[2010] FWA 9735 |
|
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
Printed by authority of the Commonwealth Government Printer
<Price code A, PR505160>
0