Behnoush Randall v Metso Australia Pty Ltd, Scott Cooper, Sophie Parolin, Andrew Bohnen, Chris Gadeke, Lizelle Masson
[2024] FWC 3127
•12 NOVEMBER 2024
| [2024] FWC 3127 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Behnoush Randall
v
Metso Australia Pty Ltd, Scott Cooper, Sophie Parolin, Andrew Bohnen, Chris Gadeke, Lizelle Masson
(C2024/7026)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 12 NOVEMBER 2024 |
Request to name an additional respondent – request denied.
On 1 October 2024 Ms Behnoush Randall (the Applicant) applied to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (the Act) claiming she had been dismissed in breach of the general protections provisions of the Act. The application named her employer Metso Australia Pty Ltd (Metso) and five individuals who are employees of Metso as named above (the Respondents).
On 28 October 2024 the Applicant’s representative wrote to the FWC as follows:
“Dear Associate Ms Kerr,
After reviewing the respondent's information, I found an issue with the original application. Mr. Morton was listed as a contact person for Mesto instead of being one of the respondents.
May Mr. Morton be added as a respondent and Mr. Jackson be added as the contact person?”
Later that day my Chambers wrote to the parties, seeking the Respondents’ views on the addition of Mr Morton as a respondent. On 30 October 2024 the Respondents provided submissions opposing the addition of Mr Morton. In those submissions, the Respondents proposed that the originating application did not properly articulate a claim for a general protections breach, including not making clear the workplace right upon which the Applicant relied for the claim. Further, it was submitted that the application named the five additional respondents without properly articulating any elements of accessorial liability.
The Respondents also drew my attention to the finding of Deputy President Asbury (as she then was) in the matter of Australian Workers' Union, The v Murphy Pipe & Civil Gas Pty Ltd & MPC Operations Labour Pty Ltd and Another where the Deputy President stated as follows:
“Even if it is accepted that the Commission has the power under s. 586(a) to amend a general protections application by adding a new respondent, the present case is not one where such a power should be exercised. Cases where the power under s. 586(a) has been exercised to add a respondent are limited to those where there has been a technical error in naming the respondent and for all practical purposes the entity sought to be added to the application is already responding to the application.”[1]
The Respondents submitted that there was no technical error in not naming Mr Morton and that the Applicant was simply seeking to add him as an afterthought. The Respondents also noted the decision of Commissioner Cirkovic in Sergei Princip v Beta Publishing Pty Ltd t/a Vesti where the Commissioner found that the FWC has the power to amend an application by adding a respondent. However, in that case the Commissioner declined to exercise her discretion to add a respondent, noting as follows (citations removed):
“In coming to my conclusion, I find the following matters particularly persuasive:
·The evidence before me suggests that the Applicant was aware at the time of filing the Original Application of the facts relevant to support an argument for Mr Miller’s accessorial liability under s.550. The Applicant gave evidence that in providing his initial instructions to his representatives, he “provided [them] with all the documentation” and “mention (sic) Mr Miller all the time”. There is no evidence before me that the Applicant discovered at any later point further facts which would be relevant to a s.550 argument.
·While the Applicant emphasised Mr Miller’s intimate involvement in these proceedings, this involvement was always in his capacity as a contactor representative of the Respondent. Unlike those cases where amendment was allowed, the omission of Mr Miller as a respondent in the Original Application was not a technical failure to identify or name the proper legal entity. There is no legal complexity in the Respondent’s corporate affairs that obscured Mr Miller’s involvement in the alleged contravention. The Applicant has not, until the filing of the F1, attempted in any way to prosecute a case against Mr Miller in his personal capacity, despite his awareness of Mr Miller’s alleged involvement in the contravention.
·Mr Princip gave evidence that he was aware as early as around April 2018 of at least a potential sale of the Vesti rights.
· I am not persuaded as to the risk of injustice to the Applicant if Mr Miller is not added to the Original Application prior to the issuing of a certificate, particularly given that the Applicant may be able to name both Mr Miller and Beta Publishing Pty Ltd as respondents in a general protections application to the Federal Court of Australia, whether or not Mr Miller is named on the certificate.”[2]
The Respondents submitted that the application as it stood was misconceived and without basis. To add another respondent without having had the Applicant provide a serious justification for doing so was therefore not appropriate.
Having received these submissions I advised the parties that my provisional view was that Mr Morton should not be added as a respondent. However, I provided the Applicant with an opportunity – if she was still seeking to press for Mr Morton to be added - to make submissions in response to the Respondent’s submissions. The Applicant provided such submissions on 1 November 2024.
In those submissions, the Applicant claimed that Mr Morton was an important figure in the substantive matter and was involved in relevant matters related to her dismissal. The Applicant also noted that Mr Morton was named in previous applications she had made to the FWC such as the anti-bullying application AB2024/691 and previous general protections application C2024/6600. Given this, the failure to name Mr Morton had been a genuine error and the Applicant submitted that Mr Morton needs to “answer to his actions” and that not adding him would be an injustice.
I should also note that the Applicant submitted with its written arguments two audio recordings purporting to have been covertly made during a meeting at which Mr Morton and the Applicant were present. The Applicant submitted that these were relevant to the general protections breaches.
The Respondent provided – at my invitation – submissions in reply. The Respondent’s position was that the audio recordings were prima facie evidence of a breach of the Western Australian Surveillance Devices Act1998 and should not be considered, particularly in light of them being edited recordings lacking context. In summary, the Respondent proposed that the Applicant’s attempt to add Mr Morton was procedurally unsound, lacked any legal or evidentiary basis and amounted to an abuse of process.
Consideration
I am mindful that the Applicant is being represented by an immediate family member who concedes he is not legally qualified. On that basis, while I agree with the Respondent’s assessment of the application as being somewhat lacking in particularity, I am prepared to proceed with the matter and allow the Applicant to explain the claim further at conference. I am also prepared to overlook assertions such as the accusation that Mr Jackson for the Respondent is attempting to pervert justice and undermine the principles of law when he is clearly doing no such thing. Further, while I have serious concerns about the covert recordings made, I have resolved to simply pay them no heed in making this decision on the basis that they were likely to have been illegally obtained and the brief comments provided were provided in an unknown context.
However, I am concerned that the Applicant has misapprehended the processes used by the FWC to deal with s.365 applications. The application as it stands names five individuals, without any sense of how or why they are involved in the alleged contraventions. Seeking to add another respondent so he can “answer to his actions” suggests that the Applicant believes that the FWC will be making a ruling on the actions of Mr Morton. This is not the case.
The FWC will be conducting a without prejudice and confidential conference to try to settle the matter between the parties. It will not be making any findings or orders but rather issuing a certificate to allow the matter to be pursued with a new application in the Federal Circuit and Family Court or the Federal Court if it cannot be resolved. If such an application is made, then the Applicant may rely on the decision of Lucev J in Bognar v Skilled Offshore Pty Ltd and Anor as follows:
“Provided that a Section 368 Certificate has issued from the FWC, and provided that the general protections court application is in relation to the same dismissal (in the broad sense: see Shea (No. 1)), accessorial liability is limited only by the terms of s.550 of the FW Act, and the capacity to bring a party alleged to be accessorially liable within the relevant acts or omissions set out in s.550(2) of the FW Act.”[3]
Put simply, the Applicant may seek to have Mr Morton included as a respondent if she pursues court proceedings in respect of her dismissal. Given this, there is no disadvantage to the Applicant if Mr Morton is not added to the application that will be dealt with by the FWC. Given this, I am satisfied that it is not appropriate to exercise my discretion to add Mr Morton as a respondent in this matter and I decline to do so.
DEPUTY PRESIDENT
[1] Australian Workers' Union, The v Murphy Pipe & Civil Gas Pty Ltd & MPC Operations Labour Pty Ltd and Another [2016] FWC 111 at [145]
[2] Sergei Princip v Beta Publishing Pty Ltd t/a Vesti [2019] FWC 4160 at [17]
[3] Bognar v Skilled Offshore Pty Ltd and Anor [2016] FCCA 2962 at [65]
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