Bradley Lisle v Roadtek

[2018] FWC 984

[2018] FWC 984

FAIR WORK COMMISSION

DECISION

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

Bradley Lisle
v
Roadtek
(U2017/12633)

DEPUTY PRESIDENT DEAN BRISBANE, 19 MARCH 2018

Application for an unfair dismissal remedy – application to amend respondent – s.586.

[1] On 28 November 2017, Mr Bradley Lisle made an unfair dismissal application under s.394 of the Fair Work Act 2009. The application named the Respondent as Roadtek.

[2] On 22 December 2017 the Department of Transport and Main Roads (Roadtek) filed a Form F3 – Employer Response to Mr Lisle’s application asserting that Mr Lisle was not an employee of Roadtek.

[3] A copy of the Form F3 was provided to Mr Lisle on 28 December 2017. Mr Lisle sent an email to the Fair Work Commission (the Commission) in response as follows:

“Scott I believe I have incorrectly put the wrong employer. I worked for Protech who then gained employment for me with Roadtek. I therefore need to update my files with Protech. Please advise what information I need to supply.”

[4] On 29 December 2017 Mr Lisle filed an amended Form F2 naming Protech Personnel Pty Ltd (Protech) as the respondent. Later on the same day, he filed a Form F1 after being advised by Commission staff that he should make an application to amend the respondent through the filing of such form.

[5] Protech was advised of the application. It confirmed that Mr Lisle was an employee of Protech but did not consent to the amendment of the application to reflect Protech as the respondent.

[6] The matter was listed for hearing to determine the application to amend the respondent. At the hearing Mrs Theresa Lisle appeared on behalf of Mr Lisle and Mr David Miller appeared on behalf of Protech. Roadtek were informed of the hearing and advised the Commission that they did not wish to participate in the proceedings.

[7] During the hearing the parties agreed to have further discussions and as a result the hearing was adjourned. The parties subsequently advised that a resolution had not been reached and that the application to amend the named respondent could be determined based on the material before me.

Submissions of Mr Lisle

[8] Mr Lisle submited that Roadtek was named as the respondent to the application as the issue resulting in his dismissal arose while he was working on Roadtek’s site. He highlighted that he had made reference to Protech in his originating application. At 3.2 of the Form F2, Mr Lisle noted that “I was employed at Roadtek through an agency Protech.”

[9] Mr Lisle subsequently submitted that he has not been considered for other roles through Protech, despite Protech’s submission that he was still on their books. He stated that he applied for two jobs which were advertised by Protech for which he did not receive any response. He stated that prior to the incident that led to his dismissal at the Roadtek site, he would be contacted by Protech and informed of available roles, however since the incident he had not been contacted by Protech.

Submissions of Protech

[10] Protech’s primary submission was that s.586 of the Act did not allow the ‘correction or amendment’ of any application where the ‘correction or amendment’ had the effect of creating a new application. It submitted that to substitute one entity for another, in circumstances where the entities are unrelated, has the effect of creating a new application and cannot be described as a ‘correction or amendment’ of an existing application.

[11] Protech referred to the Full Bench decision in Djula v Centurion Transport Co. Pty Ltd 1and noted that while the Full Bench concluded that the power under s.586 does extend to the replacement of a party it “makes it very clear that the circumstances in which they might consider such an amendment are most unusual and it is not an amendment that is likely to be made very often.”2

[12] Protech submitted that this was not a case where the applicant was confused about the identity of the respondent or where the respondent has been substituted by another member of the same corporate group. Mr Lisle has identified an entity (Roadtek) which in law was never his employer and an entity which is entirely separate and independent of Protech, who was his employer. It submits that if confronted by the circumstances of this matter, the Full Bench in Djula would not have allowed the amendment.

[13] It was contended that an amendment of the identity of the respondent without further amendment will achieve an absurd result, given the facts and circumstances relied upon by Mr Lisle as amounting to unfairness on the part of Roadtek relate solely to actions undertaken by employees of Roadtek and are not, and cannot be, claimed as the actions of Protech or any of its employees.

[14] Protech submitted that from its perspective, Mr Lisle was still in the same position as he was prior to the incident at Roadtek, and that Protech are ready, willing and able to offer Mr Lisle suitable roles that may arise.

Consideration

[15] Section 586 of the Act provides a power for the Commission to amend any application relating to a matter before it. Section 586 provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[16] It is clear from the decision in Djula that s.586 provides the power for the Commission to amend the identity of a respondent. The exercise of that power is discretionary. The question then arises as to whether, as a matter of discretion, that power should be exercised in the particular circumstances of this matter.

[17] I do not accept Protech’s submission that the granting of the amendment would have the effect of creating a new application. In this case, Mr Lisle is not seeking to change the nature of the application, for example from unfair dismissal application to a general protections application. Mr Lisle is not seeking to revoke or set aside his unfair dismissal application, and the application would remain the same should the amendment be granted.

[18] In Ms Kataryzna Wybranski v Telstra (Contracted by Regent Recruitment) Commissioner Roe permitted the name of the respondent to be amended. He held that:

“[24] Taken as a whole, the circumstances and the material before me amply demonstrate that the Applicant was seeking to make an unfair dismissal Application

against her employer and that she had a reasonably based belief that there was a hybrid employment situation involving Telstra and the labour hire firm Regent Recruitment. I accept that the identification she used “Telstra (Contracted by Regent Recruitment)” was intended to identify that Regent Recruitment had hired the Applicant and that she had worked under an arrangement with and for Telstra.

[25]Telstra is not and never was the Respondent. The Applicant simply failed to accurately specify the Respondent and put in a hybrid name.”

[19] In Peter Mihajlovic v Lifeline Macarthur 3, Vice President Hatcher, in determining whether to exercise discretion under s.586 to waive irregularity in the manner which an unfair dismissal application was made, said:

“[9] If I were to dismiss Mr Mihajlovic’s current application, he would be compelled to make an application under s.394(3) for a further period in which to file the same application a second time. Such an application would undoubtedly be opposed by the respondent, and might well not succeed given the necessity to demonstrate exceptional circumstances. Further proceedings involving effort, inconvenience and cost to both parties would be necessary, and might result in a significant injustice being done to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a perverse outcome, and that the discretion in s.586(b) should be exercised in Mr Mihajlovic’s favour.”

[20] If I were to dismiss Mr Lisle’s application, he would need to make a new application under s.394 against Protech. Such an application would be subject to an application for extension of time under s.394(3) of the Act. Any application under s.394(3) would result in further proceedings and has the potential to increase the costs, effort and inconvenience to both parties.

[21] In the circumstances of this matter, Mr Lisle made his application well within the time prescribed by the Act and acted expeditiously following the Commission providing him with a copy of Roadtek’s response to that application. Further, had Roadtek responded to the application in a timely manner, Mr Lisle would have been in a position to refile his application within time.

[22] Finally, there is no evidence that the granting of the amendment would cause Protech to suffer any prejudice. While the absence of prejudice is not of itself a reason to amend the Respondent, it is a relevant factor to consider in determining whether to exercise my discretion.

Conclusion

[23] Having considered all the circumstances in this matter, I am satisfied that I should exercise my discretion and grant Mr Lisle’s application to amend the named respondent. An order to that effect will be issued with this decision.

[24] The matter will be referred for conciliation, and if necessary, arbitration.

DEPUTY PRESIDENT

Appearances:

T. Lisle on behalf of Mr Lisle.

D. Miller for Protech.

Hearing details:

2018.

Sydney (By telephone):

February 15.

Printed by authority of the Commonwealth Government Printer

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 1   [2015] FWCFB 2371.

 2   Submissions of Protech Personnel Pty Ltd.

 3   [2014] FWC 1871.