Peter Kneal v Myka Home T/A Hermesvilla Pty Ltd

[2016] FWC 7772

[2016] FWC 7772

FAIR WORK COMMISSION

DECISION

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

Peter Kneal
v
Myka Home T/A Hermesvilla Pty Ltd
(C2016/6003)

COMMISSIONER WILSON MELBOURNE, 26 OCTOBER 2016

Application to deal with an unlawful termination dispute - application amended from s.773 to s.365 "application to deal with contraventions involving dismissal".

[1] On 6 October 2016 Mr Peter Kneal made an application pursuant to s.773 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with an unlawful termination dispute. The application discloses the Respondent to be Myka Home, trading as Hermesvilla Pty Ltd, a company which appears to operate in Victoria, with Mr Kneal’s termination of employment taking effect on 16 September 2016.

[2] On 17 October 2016, my Chambers issued written correspondence to Mr Kneal, drawing his attention to s.723 of the Act, which provides as follows;

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.

[3] That correspondence also noted that general protections applications may be made by an employee in relation to action taken by a constitutionally covered entity, a term which encompasses a constitutional corporation. 1

[4] Advice was sought from Mr Kneal as to whether, in light of the above, he wished to pursue his application under s.773 of the Act, or whether he wished to lodge a s.365 general protections application involving dismissal.

[5] On 19 October 2016, correspondence was received from Mr Kneal advising that he wished to discontinue his unlawful termination application and instead lodge a general protections application involving dismissal under s.365 of the Act.

[6] Upon further consideration of the circumstances of the matter, on 21 October 2016 my Chambers wrote to the parties drawing their attention to the decision of Deputy President Bull in O’Keeffe v Sucasas Pty Ltd. 2That matter dealt with the amendment of an unlawful termination application to a general protections application. The views of the parties were sought on the applicability of O’Keeffe to Mr Kneal’s position. Neither party has responded to this most recent correspondence.

[7] Section 586 of the Act provides the Commission with a broad discretion to amend applications. It provides, in its entirety;

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.

[8] In view of Mr Kneal’s prior explicit intention to pursue a s.365 general protections application, to the exclusion of his original s.773 application, I consider it appropriate to exercise my discretion, afforded under s.586 of the Act, to so amend the application made by Mr Kneal from an application lodged under s.773 of the Act to an application made under s.365 of the Act, and in observance of the reasoning in O’Keeffe.

[9] An Order to this effect is issued in conjunction with this decision.

[10] The matter will now be referred to the General Protections Case Management Team for handling in the usual fashion.

COMMISSIONER

 1   Fair Work Act, s 338.

 2   [2016] FWC 3116.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR586930>