Timothy White v Cummins South Pacific Pty Ltd

[2012] FWA 7367

[2012] FWA 7367

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Timothy White
v
Cummins South Pacific Pty Ltd
(C2012/4625)

COMMISSIONER BISSETT MELBOURNE, 27 AUGUST 2012

Application to deal with contraventions involving dismissal.

[1] An application to deal with a contravention of the general protections provisions of the Fair Work Act 2009 (the Act) was made by Mr Timothy White (the Applicant) pursuant to s.365 of the Act. The application, as made, alleged contraventions by Cummins South Pacific Pty Ltd (the Respondent) of ss.340, 351 and 352 of the Act.

[2] During the conciliation conference on the matter Mr White’s solicitor sought leave to amend Mr White’s application to include an additional alleged contravention of s.351 of the Act related to the Applicant’s family responsibilities.

[3] As this matter had not been raised prior to the conference I gave both parties an opportunity to make submissions as to whether such a variation to the application should be allowed.

[4] Having heard from both parties on the matter I grant leave pursuant to s.586 of the Act to amend the application by Mr White to include an alleged contravention of s.351 of the Act related to the Applicant’s family responsibilities in addition to the alleged contraventions indicated on the original application. The adverse action is said to be

(a) the termination of the Applicant’s employment; and/or

(b) injuring the Applicant in his employment by requiring him to undertake modified duties in Mount Gambier and attend the Respondent’s Mount Gambier office by 8:00 am on the occasions he undertook modified duties;

(c) altering the Applicant’s position to his prejudice by requiring him to do the things referred to in the preceding sub-paragraph; withdrawing suitable modified duties, equipment and benefits of the employment from him; and/or failing to place other staff on call from time to time in keeping with representations made to the Applicant prior to the commencement of the employment.

COMMISSIONER

Final written submissions:

21 August 2012.

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