Mr Adam Wojeski v E Waste T/A E Waste Recycling

[2017] FWC 5121

[2017] FWC 5121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773 - Application to deal with an unlawful termination dispute

Mr Adam Wojeski

v

E Waste T/A E Waste Recycling

(C2017/4643)

Commissioner Hunt BRISBANE, 3 OCTOBER 2017

Application to deal with an unlawful termination dispute.

1. On 23 August 2017, Mr Adam Wojeski 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 E Waste T/A E Waste Recycling.

1. In response to the application, the Respondent filed a Form F9A and provided the Commission with the ABN of the Respondent.  It appears from the ABN provided that the Respondent is a constitutional corporation.

1. Section 723 of the Act states:

‘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.’

1. On 26 September 2017, my Chambers issued correspondence to the parties enquiring whether the application would have been better made pursuant to s.365 of the Act and enquired whether both parties consented to the application being amended accordingly.  The parties were referred to the decision of Maher v Mulgowie Fresh Pty Ltd[1] relevant to the amendment proposed.

1. Both parties indicated they agreed to the application being amended and on 26 September 2017 the Applicant filed an amended application pursuant to s.365 of the Act.

1. Section 586 of the Act provides the Commission with a broad discretion to amend applications. It states:

‘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.’

1. Having regard to the documents currently before the Commission, and Mr Wojeski’s wish 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 Wojeski from an application lodged under s.773 of the Act to an application made under s.365 of the Act.

1. An Order [PR596527] to this effect is issued at the same time as this decision.

1. The matter will now be allocated to the General Protections Case Management Team.

COMMISSIONER

[1] [2010] FCA 439.

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