Roger Boyd v Sleepeezee Bedding Australia Pty. Ltd

[2020] FWC 1872

[2020] FWC 1872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Roger Boyd
v
Sleepeezee Bedding Australia Pty. Ltd.
(C2020/514)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 APRIL 2020

Application to deal with an unlawful termination dispute.

[1] On 29 January 2020, Mr Roger Boyd (Applicant) made an application under s.773 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with an unlawful termination dispute, in relation to his former employer Sleepeezee Bedding Australia Pty. Ltd. (Respondent).

[2] Relevantly s.723 of the Act forbids a person making an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to that conduct. There is little doubt that the Respondent is a trading corporation, and so a national system employer.

[3] The claims made in the application are of a kind which might or would usually be made in connection with an unfair dismissal application rather than a dismissal related general protections application or unlawful termination application. On the face of the application it appears that it was made because the Applicant had not completed the qualifying period of employment required to bring an unfair dismissal claim.

[4] Nevertheless, assuming the claims made in the application engage with the unlawful termination provisions of the Act, they will also engage with the general protections provisions.

[5] On 14 February 2020 my Associate advised the Applicant that on the face of the application it appears the Respondent is a national system employer and thus the Applicant may be eligible to pursue a general protections application involving dismissal. My Associate made several attempts to contact the Applicant however no response was received.

[6] The matter was listed for a telephone mention on 1 April 2020. My Associate made numerous attempts to contact the Applicant however the Applicant did not attend. Had the Applicant attended the telephone hearing or responded to the various attempts by my Associate to make contact, I might have entertained an application by him to correct the application made so that it be treated as a general protections dismissal related dispute.

[7] In the circumstances however, I have decided to dismiss the application because even assuming a certificate were to be issued, an unlawful termination application to the court in relation to conduct must not be made because the Applicant is entitled to make a general protections court application in relation to that conduct. The application is thus not made in accordance with the Act.

[8] The application is dismissed.

DEPUTY PRESIDENT

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