Beau Foster v Silvercrete Concrete Products

[2021] FWC 6571

[2021] FWC 6571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Beau Foster
v
Silvercrete Concrete Products
(U2021/9299)

COMMISSIONER BISSETT MELBOURNE, 14 DECEMBER 2021

Application for an unfair dismissal remedy

Background

[1] On 17 October 2021 Mr Beau Foster (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Foster alleged he was unfairly dismissed by Silvercrete Concrete Products (the Respondent) on 29 September 2021.

[2] On 25 October 2021 the Respondent submitted the Form F3 – Employer response form to the Commission. The Respondent objected to the application on the basis that the Applicant was not an employee. The Respondent stated that it had a commercial contract with Zancott Recruitment for labour hire purposes.

[3] On 26 October 2021 the Commission attempted to contact Mr Foster’s representative Ms Jessica Musolino on her nominated telephone number, however she could not be reached. A voicemail was left asking her to contact the Commission to discuss the application. A call was also made to Mr Foster, however he did not answer and there was no option to leave a voicemail.

[4] On 27 October 2021 the Commission again attempted to contact Ms Musolino, there was no answer and a voicemail was left.

[5] Commission records indicate that on 1 November 2021 “Laura from a labour hire company” contacted the Commission advising that the Applicant had listed the host company rather than the labour hire company as the employer on the Form F2. The Commission advised that the Applicant would be informed of the process to amend the Respondent name.

[6] Later that day, the Commission attempted to contact Mr Foster on his nominated telephone number, however he did not answer and there was no option to leave a voicemail. The Commission also attempted to contact Ms Musolino, however she could not be reached and a voicemail was left asking her to contact the Commission.

[7] The matter was listed for telephone conciliation before a staff conciliator on 15 November 2021. On the day of the conciliation, Mr Foster could not be reached. Ms Musolino could be reached and advised that the Applicant was unavailable as he was working. The Respondent was also reached, however the nominated contact person advised that the Respondent did not believe it had to participate in conciliation as it was not the correct employer. The Respondent provided the contact details of Ms Laura Cicozzi of Zancott Recruitment. The listed conciliation did not proceed.

[8] On 18 November 2021 the Commission again attempted to contact Ms Musolino by telephone, however she could not be reached and a voicemail was again left. Additionally, Mr Foster and Ms Musolino were contacted by email requesting they urgently contact the Commission.

[9] Later that day, Ms Musolino contacted the Commission by telephone advising it was her understanding a further attempt at conciliation would occur between the Applicant and Zancott Recruitment. Ms Musolino confirmed that the Applicant had been employed by Zancott Recruitment and that the named Respondent was a host company. The Commission informed Ms Musolino that in order for the application to be amended to reflect the correct employer, the Applicant would need to make a written application to do so via a Form F1. Mr Foster and Ms Musolino were subsequently emailed a blank Form F1 with instructions for completing and submitting the form.

[10] On 23 November 2021 the Commission attempted to contact Ms Musolino on her nominated telephone number as the written request to change the name of the Respondent had not been received by the Commission. There was no answer, and a voicemail was left. The following day, 24 November 2021, the Commission also emailed correspondence to Mr Foster and Ms Musolino requesting an update as to when the Form F1 would be submitted.

[11] On 25 November 2021 Ms Musolino responded to the email advising that she and Mr Foster had been unwell and would try to complete the Form F1 by the end of the week.

[12] Later that day, the Commission emailed correspondence to Ms Musolino and Mr Foster requesting the Form F1 be filed by 9.00 am on 29 November 2021. There was no response, and the matter was referred to me as National Practice Leader for Unfair Dismissals at the Commission.

[13] On 30 November 2021 my chambers emailed correspondence to the Applicant and his representative stating that it appeared the correct employer was Zancott Recruitment and seeking confirmation of the correct employer name by return email by 4.00 pm Monday 6 December 2021. The correspondence advised that a failure to respond may result in the matter being considered for dismissal by me. The labour hire company, Zancott Recruitment, was copied into the email.

[14] Shortly after the email was sent, Zancott Recruitment replied advising it was the correct employer.

[15] There was no response from the Applicant or his representative by 6 December 2021.

[16] On 7 December 2021 my chambers emailed the following correspondence to Mr Foster and Ms Musolino:

On Tuesday 30 November 2021 the Commission requested you confirm the correct name of the employer by Monday 6 December 2021. The Commission has not received confirmation.

Zancott has confirmed it was the employer, however the Commission file cannot be updated to reflect this until confirmation by the applicant or their representative is received.

In these circumstances, where the applicant has continually failed to respond to the Commission, Commissioner Bissett is considering dismissing the unfair dismissal application under s.587 of the Fair Work Act 2009.

You are directed to reply to this email explaining why the Commissioner should not dismiss the application by 4.00 pm Monday 13 December 2021.

Failure to respond may result in the matter being dismissed without further correspondence.

Alternatively, confirm the correct name of the employer by reply email and the matter will be programmed for conciliation or hearing.

[17] There was no response to this correspondence.

Consideration

[18] Section 587(1) of the FW Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospect of success.

[19] This application was made by Mr Foster. It his application and only he or his representative can formally request the name of the employer be changed. As explained to the applicant and his representative, this request needs to be in writing.

[20] Silvercrete Concrete Products and Zancott Recruitment have both stated that Zancott Recruitment was the correct employer. Multiple attempts to receive a completed Form F1 request from the Applicant were unsuccessful. Attempts from my chambers to have the Applicant confirm the name of the correct employer by reply email were also unsuccessful.

[21] The correspondence of 7 December 2021 advised the Applicant, Respondent and Zancott Recruitment that I would consider dismissing the application under s.587 of the FW Act if the Applicant did not reply to correspondence from my chambers. It seems that even this was not enough to have the Applicant put anything in writing to the Commission.

[22] In considering whether Mr Foster’s application should be dismissed pursuant to s.587(1)(c) of the FW Act on the basis that is has no reasonable prospect of success, it is evident there are two pertinent factors to assess:

1. The jurisdictional objection raised by the Respondent

2. The Applicant’s repeated failures to respond to Commission correspondence

Jurisdictional Objection

[23] The Respondent objects to the application on the basis that Mr Foster was not an employee of Silvercrete Concrete Products. It says the Applicant was employed by a labour company it engages with.

[24] The Respondent has stated it does not believe it needed to attend conciliation, as it has advised Zancott Recruitment was the employer several times.

[25] Both the Respondent and Zancott Recruitment have said, verbally and in writing, that Zancott Recruitment was the employer.

[26] I see little utility in referring the matter back to staff conciliation where the Respondent maintains it was not the employer and has expressed that it does not need to attend conciliation. As staff conciliation is a voluntary process, I am not convinced the named Respondent would consent to a further attempt at conciliation without the Applicant making the necessary application to change the Respondent name on the application.

[27] As the named Respondent is not the actual Respondent (and this is not disputed by Zancott Recruitment) there is also no utility in the application being programmed for hearing in circumstances where the Respondent has raised a jurisdictional objection. The objection raised by the Respondent would require a Jurisdictional Hearing. The merits of the Applicant’s claim would not be considered. On the basis of the material before me it is highly likely this jurisdictional objection would be upheld and the application dismissed.

Repeated failure to Respond

[28] While there has been some contact from Mr Foster and Ms Musolino with the Commission, the history of the application as outlined above highlights consistent and continued failures by them to respond to the correspondence and requests of the Commission. In addition, Mr Foster did not attend the previously listed staff conciliation although his representative, Ms Musolino did attend.

[29] Taking into account the history of the Applicant failing to respond to the Commission’s requests I am not convinced the Applicant would respond to a Notice of Listing or Directions or attend a conference or hearing having previously failed to attend conciliation due to apparently having gained alternative employment. While Ms Musolino expressed interest in the Applicant conciliating with Zancott Recruitment, the Applicant has made no effort to correct the name of the employer despite numerous attempts by the Commission to achieve this.

[30] Considerable time and Commission resources have been used to obtain a relatively simple written confirmation from the Applicant that the Respondent name needs to be changed. I am not convinced that the Applicant would respond to filing dates required by Directions issued. A failure to provide submissions would likely result again in the unnecessary use of Commission resources and frustration for the Respondent.

The Commission should change the Respondent’s name

[31] This is not a plausible course of action. For the Commission to act unilaterally on the advice of an employer as to the correct identity of the Respondent to an unfair dismissal application without proper confirmation of the Applicant leaves the Commission open to altering an application when this is not sought by or agreed to by an applicant. This would be particularly concerning where the identity of the true employer is in dispute. Ultimately it is the Applicant’s responsibility to ensure a completed and correct application is made to the Commission. Substantial assistance is provided on the application form and on the Commission’s website to enable this to occur.

Conclusion

[32] For the reasons given above, I am therefore satisfied that I should exercise my power under s.587(1)(c) of the FW Act to dismiss the application on the basis that it has no reasonable prospect of success. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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