Ms Marie Forbes v Petbarn Pty Ltd T/A Petbarn

[2016] FWC 2688

[2016] FWC 2688

FAIR WORK COMMISSION

DECISION

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

Ms Marie Forbes
v
Petbarn Pty Ltd T/A Petbarn
(C2016/3426)

COMMISSIONER PLATT ADELAIDE, 28 APRIL 2016

Application to deal with an unlawful termination dispute.

[1] This is an application by Ms Marie Forbes for the Fair Work Commission to deal with an alleged unlawful termination dispute pursuant to s.773 of the Fair Work Act 2009 (the Act).

[2] Ms Forbes alleges that she was unlawfully dismissed by Petbarn Pty Ltd (Petbarn) on 5 April 2016.

[3] On 28 April 2016, I held a telephone conference between the parties. Ms Forbes was represented by Mr O’Dowd and Petbarn was represented by Mr Luke of counsel (by consent and with a grant of permission).

[4] I advised Ms Forbes that she was unable to make an application pursuant to s.773 of the Act if she was eligible to make a general protections court application in relation to the alleged Employer's conduct. I drew Ms Forbes’ attention to s.723 of the Act. Petbarn agreed with this assessment.

[5] Ms Forbes contended that she was prevented from making a general protections claim because she had not completed the minimum employment period specified in s.383 of the Act. This position is misconceived as the minimum employment period relates to unfair dismissal applications lodged under Part 3-2 of the Act. No such requirement applies to general protection applications made under Part 3-1 of the Act.

[6] Ms Forbes has alleged that she made a Workers Compensation claim against Petbarn and as a result of the conduct of a mediation conference concerning that claim, her employment was terminated.

[7] Petbarn concedes that it is a constitutional corporation.

[8] I am unable to accept the submission that Ms Forbes is not entitled to make a general protections dispute application pursuant to s.365 of the Act.
[9] I am satisfied that this matter will not be resolved by further conferences and will issue a certificate to that effect. I advise the parties that in my opinion the application does not have a reasonable prospect of success for the reasons detailed above.

COMMISSIONER

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