Fair Work Act 2009_

s.773 - Termination of employment

Application to deal with an unlawful termination dispute.

[1] On 14 June 2013 an application was received by the Fair Work Commission (the Commission) from Dr Pia Rockhold pursuant to s.773 of the Fair Work Act 2009 (the Act) alleging that her employment had been terminated in breach of the s.772 of the Act (an 'unlawful termination') by her employer, Cardno Emerging Markets (Australia) Pty Ltd (the Respondent).

[2] The Applicant is not a resident of Australia but resides in the United States of America and is currently in the very Northern part of Norway.

[3] The Applicant has previously sought permission to be represented in the conference to deal with her application. I granted permission, having heard from both the Applicant and Respondent on that matter, on the grounds that I considered it would allow the matter to be effectively dealt with if permission was granted for the Applicant to be represented.

[4] The Applicant's representative has now sought permission to change the application from one made under s.773 of the Act to one made under s.365 (general protections involving dismissal) on the grounds that the Applicant, in making her application, was not represented and was not fully cognisant of the different provisions of the Act.

[5] I sought the views of the Respondent to the request of the Applicant. The Respondent has indicated that it has no objection to the amendment to the application but reserves its position as to jurisdictional objections it may raise to the application.

[6] Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind. Section 586 allows the Commission to allow a correction or amendment to any application relating to a matter before the Commission.

[7] Rule 6 of the rules of the Commission (the Rules) require that, subject to the Rules, an application must be made using the form in Schedule 2 to the Rules that is specified for that purpose.

[8] Rule 4 allows the Commission to dispense with compliance with any of the requirements of the Rules.

[9] In accordance with the power under s.586 of the Act I will allow the application made by Dr Rockhold to be amended to an application under s.365 of the Act. To the extent that it is necessary I dispense with the requirement that a s.365 application be made on a Form F8. The s.365 application will be taken to have been made on the date the s.772 application was lodged with the Commission.

[10] In coming to this decision I note that the Applicant, in her application, has identified a number of grounds on which she says the termination of her employment was in breach of s.772(1) of the Act. I now accept these as the grounds on which she says her employment was terminated in contravention of the general protections of the Act.

[11] In order to allow the Respondent to properly respond to what is now an application made pursuant to s.365 of the Act, the Applicant is required to advise the Commission by 4.00pm Wednesday 10 July 2013 of any further amendments it seeks to make to the application.

[12] The Respondent is required to file the employer response to the application on the Form F8A specified in the Rules by 4.00pm Wednesday 17 July 2013.

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