Chad Everett v Luka Tippers and Excavation Pty Ltd

[2017] FWC 3959

[2017] FWC 3959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Chad Everett
v
Luka Tippers and Excavation Pty Ltd
(C2017/1477)

COMMISSIONER CIRKOVIC MELBOURNE, 27 JULY 2017

Application to deal with contraventions involving dismissal– Application to vary Respondent.

[1] Mr Chad Everett made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that his dismissal on 24 February 2017 by Luka Tippers and Excavation Pty Ltd was in contravention of the general protections provisions of the Act. Mr Everett named Luka Tippers and Excavation Pty Ltd as the Respondent to that application.

[2] In the Form F8A Employer Response filed by Luka Tippers and Excavations Pty Ltd, the Respondent objected to the application on the grounds that it was not Mr Everett’s employer.

[3] On 7 April 2017 Mr Everett filed a Form 1 seeking to vary the name of the employer in this matter. The Applicant sought to vary the application pursuant to s.340 of the Act, to amend the name of the Employer from Luka Tippers and Excavation Pty Ltd to LTE Labour Hire Pty Ltd.

[4] On 15 May 2017 directions were issued.

[5] Mr Everett’s outline of submission and witness statement was filed and served on 26 May 2017. Mr Nicola Maric filed and served an outline of submission and witness statement on behalf of Luka Tippers and Excavation Pty Ltd on 12 June 2017. The Applicant did not provide submissions in reply by the due date.

[6] On 16 June 2017, my chambers sent correspondence to the Applicant’s representative, Mr Luke McCrone of the Transport Workers Union, requesting that he confirm whether the Applicant was seeking variation of the named Respondent on the basis of s.586(a) or s.586(b) of the Act.

[7] On 20 June 2017, my chambers sent correspondence to Mr McCrone asking that the Applicant comply with the direction to file and serve a written submission in reply by close of business Monday 19 May 2017, as soon as possible.

[8] On 21 June 2017, Mr McCrone confirmed that the variation being sought by the Applicant was on the basis of s.586(a) of the Act and that the Applicant had no further submissions to make in response to the Respondent’s outline of submission and witness statement.

[9] Email correspondence was subsequently received by the Commission on 22 June 2017 from Mr Stuart Morrison on behalf of Mr Maric and Luka Tippers and Excavation Pty Ltd. In that correspondence the Respondent maintained its objection.

[10] At 1:09pm on 22 June 2017 the Respondent’s representative Mr Morrison advised the Commission via email that neither Mr Maric nor a representative of Luka Tippers and Excavation Pty Ltd would be available to attend the hearing. Correspondence was sent to the parties at 3:43pm on 22 June 2017 confirming that the matter would be proceeding and a decision in relation to the matter would be made on the material currently before the Commission.

[11] The matter was heard on Friday, 23 June 2017. Mr McCrone appeared on behalf of the Applicant, the Applicant did not attend the hearing to give evidence.

The Statutory Framework

[12] By way of background, s.586(a) of the Act provides that:

“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.”

Can the application be amended to permit a change in the name of the respondent?

[13] In Oznek v Oxford Cold Storage 1 Deputy President Gooley considers the question and helpfully sets out a number of authorities where the Commission has ordered the Respondent’s name to be changed pursuant to s.586 of the Act. She states as follows:

“[7] The Commission has, under s.586 of the Act, ordered a respondent’s name to be changed.

[8] In Tobiahs Pty Ltd v Jessica Vidacic 2 the Full Bench rejected as submission by Tobias Pty Ltd that “as it had not been properly served with the originating application for relief naming it as the respondent employer ... the Commission had no jurisdiction to make a decision and order against Tobias.” In that matter the original application had named Foxtons Estate Agents as the employer. In that case there was no order changing the name of the respondent but the orders were directed to Tobias Pty Ltd. The Full Bench said that the reference to the trading name rather than the legal name did not deprive the Commission of jurisdiction.3

[9] In Ms Kataryzna Wybranski v Telstra (Contracted by Regent Recruitment) 4 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.” 5

[10] Commissioner Roe further considered that if he were not able to amend the application he would have granted Ms Wybranski an extension of time to lodge her application against Regent Personnel Pty Ltd trading as Regent Recruitment.

[11]In T De Silva-McKay v EQ Life Pty Ltd  6 Senior Deputy President Watson held that s.586 of the Act provides a power for the Commission to amend the name of the Respondent.7 His Honour exercised his discretion to allow the amendment because there had been a transfer of business to Equal Media Pty Ltd and the termination of Ms De Silva by EQ Life Pty Ltd came about informally, was not documented and was inconsistent with her contract of employment which required written notice of termination of her employment. She performed the same work under the same conditions for both employers and her termination letter referred to her employment with both entities. In addition there was a clear commercial relationship between both businesses and Equal Media Pty Ltd knew of the application as its representative gave evidence in the hearing.8

[12]In Ioannou v Northern Belting Services Pty Ltd 9 the Full Bench held that s.586 cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made.10 The Full Bench was considering whether it could permit an amendment of an unfair dismissal application to make it a general protection application.

[13]In this case Mr Oznek is not seeking to change the nature of the application.

[14]He wishes to pursue his unfair dismissal application. He wishes to change the name of the respondent.

[15] In line with existing authority I find that I have the power to grant the application however, the power to amend an application is discretionary.

[16] In his application to amend Mr Oznek did not in any way explain why he made his original application against A.B Oxford or as he suggested later in correspondence against Mr Fleizig, when he knew at the time he was employed by an employment agency. He was provided with a letter from Maric on 11 July 2014 which clearly advised him that his employment with Maric had been terminated. This was before he completed his unfair dismissal application. There is no evidence before me that would support a finding that there was any confusion about the identity of Mr Oznek’s employer. It appears from the documents provided by Mr Oznek that he wants those involved in the incident that led to the ending of his employment brought to account. This is not the purpose of an unfair dismissal claim. An unfair dismissal claim is an action against the employee’s employer alleging that its decision to terminate the employment was unfair.”

[14] In his application to amend Mr Everett submits that he was under the impression at the time that he made the application that Luka Tippers and Excavation Pty Ltd in fact employed him. He says that he formed this view for reasons including:

• the job advertisement he responded to was in the name of Luka Tippers and Excavation Pty Ltd;



• the truck he drove had Luka Tippers and Excavation Pty Ltd emblazoned on the door;



• the company T-shirt he was issued with had the name of Luka Tippers and Excavation Pty Ltd displayed on it;



• that his day-to-day direction came from Mr Maric and that it was Mr Maric who actually terminated his employment;



• that he believes that the person identified as Mr Nicola Maric in the Applicant’s Form 8 is indeed the owner of Luka Tippers and Excavation Pty Ltd;



• that he was never issued a payslip with LTE Labour Hire Pty Ltd;



• that LTE Labour Hire Pty Ltd will not be prejudiced by the change as it appears to be a related entity of Luka Tippers and Excavation Pty Ltd; and



• it was only when he received the Respondent’s Form F8A did Mr Everett consult his bank statement and discover that his wages were being paid by a business by the name of LTE Labour Hire Pty Ltd. 11

[15] The Applicant did not produce any pay records as part of his case.

[16] Mr Maric denies the Applicant’s assertion that:

• Luka Tippers and Excavation Pty Ltd advertised for truck drivers;



• Luka Tippers and Excavation Pty Ltd supplied uniforms to the Applicant;



• Luka Tippers and Excavation Pty Ltd employed the Applicant or any other employees;



• the Applicant ever entered into a contract with Luka Tippers and Excavation Pty Ltd. 12

[17] The Respondent in its written material submits that:

• Luka Tippers and Excavation Pty Ltd advertise their brand on vehicles that were not owned by them;



• LTE Labour Hire Pty Ltd engaged Mr Everett;



• Mr Everett was engaged by LTE Labour Hire to drive on projects of Luka Tippers and Excavation Pty Ltd;



• LTE Labour Hire supplies drivers to companies across the construction centre including Luka Tippers and Excavation Pty Ltd;



• when on Luka Tippers and Excavation Pty Ltd sites drivers are directed by Luka Tippers and Excavation Pty Ltd management;



• Mr Maric informed the Applicant that he would be advising LTE Labour Hire that the Applicant’s performance was not satisfactory due to driving incidents on projects; and



• Mr Maric had no interest in LTE Labour Hire. 13

[18] At the hearing of this matter Mr McCrone confirmed that Mr Everett would not be attending and giving evidence. I sought clarification from Mr McCrone as to the manner in which he pressed the application. Mr McCrone was invited to apply to adjourn the matter to enable Mr Everett to attend, to attest to the factual matters in dispute between the parties and to produce further evidence of the connection between LTE Labour Hire and Luka Tippers and Excavation Pty Ltd. Mr McCrone maintained that there was sufficient material before the Commission for the matter to be determined in the Applicant’s favour.

[19] In response to a suggestion from the Commission that the appropriate course may have been to lodge a fresh application in the name of LTE Labour Hire, Mr McCrone submitted that his understanding was that ‘that’s a risk proposition, as my understanding is that they’re loathe to grant the extension of time’. 14 That is not a factor that is relevant to the determination of the issue before me.

Conclusion

[20] I accept that I have the discretion to grant the application sought pursuant to s.586. In all the circumstances I am not prepared to exercise my discretion to permit the amendment of the application under s.586(a). An order 15 to that effect will be issued at the same time as the decision.

[21] 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. 16 On consideration of all of the materials before me, I am not satisfied that Luka Tippers and Excavation Pty Ltd and LTE Labour Hire are related entities.

[22] During the hearing I stressed to Mr McCrone that, notwithstanding the Commission’s power to grant an application to change the name of the Respondent, it was incumbent on the Applicant to provide a satisfactory explanation for his failure to correctly identify his employer and to persuade the Commission to exercise its discretion in its favour. 17 Had Mr Everett attended the hearing to give evidence, or had Mr McCrone sought an adjournment to enable further material to be filed, the matter may have been determined differently. This was Mr Everett’s application and the obligation was on him to persuade the Commission to exercise its discretion in his favour, particularly in circumstances where the Respondent opposed the application and claimed to have ‘no interest’ in LTE Labour Hire.

[23] In terms of the next step, given that the application has not been the subject of a conciliation conference aimed at resolving the dispute, I am not satisfied that all reasonable steps to resolve the dispute have been or are likely to be unsuccessful, this matter will be listed for conciliation.

COMMISSIONER

Appearances:

Luke McCrone, ofTWU for Applicant.

Hearing details:

2017

23 June.

 1   [2015] FWC 189

 2   [2011] FWAFB 1670.

 3 Ibid at [35].

 4   [2012] FWA 2566.

 5   Ibid at [24]-[25].

 6   [2013] FWC 9203.

 7 Ibid at [10].

 8   Ibid [12]-[14].

 9   [2014] FWCFB 6660.

 10 Ibid at [17].

 11   Applicant Outline of Submissions and Witness Statement, dated 26 May 2017.

 12   Statement of Mr Nicola Maric, dated 12 June 2017.

 13   Respondent Outline of Submissions.

 14   PN79.

 15   PR594917.

 16   AWU v Murphy Pipe & Civil Gas Pty Ltd & others[2016] FWC 111

 17   PN25-26, 62-63 & 74.

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<Price code C, PR594916>