Mr Blake O'Keeffe v Sucasas Pty Ltd T/A Tapavino

[2016] FWC 3116

[2016] FWC 3116

FAIR WORK COMMISSION

DECISION

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

Mr Blake O'Keeffe
v
Sucasas Pty Ltd T/A Tapavino
(C2016/889)

DEPUTY PRESIDENT BULL SYDNEY, 19 MAY 2016

Application to deal with an unlawful termination dispute – Application to amend application from s.773 to s.365.

[1] On 18 April 2016 Mr Blake O’Keeffe (the applicant) made an application to the Fair Work Commission (Commission) to deal with an unlawful termination dispute arising under s.773 of the Fair Work Act 2009 (the Act). The applicant listed the respondent to the application as Sucasas Pty Ltd T/A Tapavino and his termination date as 7 April 2016.

[2] The applicant made the application within 21 days of the date of his dismissal and listed the reasons for his termination as including a temporary absence from work due to illness/injury and having made a workplace complaint.

[3] On 21 April 2016, the respondent filed and served a Form F9A Employer Response to the application while objecting to the application did not specify any jurisdictional objection.

[4] At a conference held on 4 May 2016, the applicant appeared on his own behalf and the respondent was represented by Mr Frank Dilernia, owner of Sucasas Pty Ltd. During the conference that fact that the respondent was a Propriety Limited business and thus a constitutionally-covered entity as defined under s.338(2) of the Act was raised. The employer being a Propriety Limited business enables the applicant to bring his application under the General Protection provisions of the Act.

[5] Section 723 of the Act prohibits an application being filed under s.773 if the applicant is able to file a General Protections application. I indicated that the conference was to be adjourned subject to a request from the applicant to amend the section of the Act under which the application was made.

[6] On 10 May 2016 the applicant filed a Form F1 seeking to amend his application to an application made under s.365 of the Act. Mr O’Keeffe outlined his reasons for seeking the amendment as follows;

“1. I arrived at work on the 07/04/2016 at 9.15 am when I was immediately advised (by Frank Dilernia owner/manager) that I had been terminated effective immediately and was demanded to leave the premise.
2. I lodged a form F9 on the 12/04/2016 in which a copy of my submission was sent to the respondent.
3. I then received a Notice of listing on the 19/04/2016 to appear in front of Deputy President Bull on Wednesday 4th May 2016 at the fair work commission.
4. During this time at the conference I was advised by Deputy President Bull that I had filed my case in the wrong section of the commission and in which I had to file the form F1 to amend the section from a 773 to a section 365.
5. I was then told that Deputy President Bull will be awaiting my amendment form to change the section 773 to a section 365.
I filed this form as it was my understanding that this was the form that I had to use in relation to the events that had unfolded. I did not seek any legal advice before lodging the form F9 section 773 and which it was my misunderstanding that I had to lodge this form in regards to general protections application.

I am Lodging this form for Deputy President Bull in a request to amend my submission of a section 773(unlawful termination dispute) to a section 365(general protections application).”

[7] On 11 May 2016 I wrote to the respondent asking it to provide any comment on the amendment sought by the applicant within 7 days and advised the parties that the application would be determined on the papers unless a party requested to be heard on the matter.

[8] On 18 May 2016, Turnbull Hill Lawyers on behalf of the respondent filed a Form F8A Employer Response objecting to the amendment being granted. The respondent outlined its objections in the following terms;

“Jurisdictional objection

The Respondent objects to the amendment the Applicant has applied to make.

A General Protections Application involving dismissal ought properly have been made within 21 days of the said dismissal. The Respondent asserts that the Fair Work Commission has no jurisdiction to deal with such an application if brought outside the 21 day time limit.

Further, the Applicant has not provided any information as to why he should be allowed to make such an Application outside the 21 days.

Substantive objection

In any event, the Application filed most recently seems to adopt the facts asserted in the Form F9 Application.

It is not clear how the Applicant alleges has been treated adversely as a result of exercising a work place right or is otherwise entitled to bring such an application. In that regard, the applicant has not identified the relevant workplace right.
In any event, in answer to all of the Applicant's claim, the Respondent asserts that the Applicant's employment was terminated due to the Respondent not being satisfied that his standard of work in the kitchen was satisfactory.

In that regard it is noted that the applicant was still within a probationary period.”

[9] Rule 8(2) of the Fair Work Commission Rules 2013 (the Rules) is set out as follows and creates a general requirement for parties to lodge an application using the correct approved form;

“(2) If the President approves a form for a particular purpose, then subject to these Rules, the approved form must be used for the purpose.”

[10] Section 586 of the Act grants a broad discretion for the Commission to amend applications and is set out as follows;

“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.”

[11] Rule 6 similarly grants a broad discretion to the Commission to dispense with the Rules and is outlined in the following manner;

“Dispensing with rules and orders inconsistent with rules

(1) The Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.

(2) The Commission may make an order that is inconsistent with these Rules and if it does so, the order will prevail.”

[12] The respondent asserted that the Commission has no jurisdiction to entertain a General Protections application that was brought outside the 21 day time period as specified within the Act. The respondent’s legal assertion is correct. However, the applicant has lodged unlawful dismissal application within 21 days of the date of his dismissal and is therefore within the 21 day time period. It is clear that the applicant attempted to promptly challenge his dismissal after it had occurred, albeit by lodging the incorrect form with the Commission.

[13] The respondent further asserted that the applicant ‘ought’ to have lodged under s.365 of the Act within 21 days of the date of his dismissal. The respondent’s argument in this regard closely reflects the general requirement as outlined under 8(2) of the Rules. The applicant should have lodged under s.365 of the Act but argues that he did not do so because he did not receive legal advice and was of the understanding that he was lodging using the correct application form.

[14] The applicant’s argument is sufficient justification to my exercising of discretion under Rule 6 of the Rules to dispense with the applicant’s general requirement to comply with Rule 8(2). As such, I invoke Rule 6 and dispense with the applicant’s requirement to lodge his application with the appropriate approved form.

[15] Furthermore, it should be noted that an amendment to the application has been sought at an early stage in the proceedings and that if the amendment was granted it would not fundamentally alter the nature of the application. This decision makes no comment upon the merits of the application.

[16] 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 O’Keeffe from an application made under s.773 of the Act to an application made under s.365 of the Act. An Order reflecting this amendment [PR580521] is issued concurrently with this decision.

[17] The matter will be referred to the General Protections Case Management Unit for further directions and programming.

DEPUTY PRESIDENT

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