David Djula v Centurion Transport Company Pty Ltd

[2015] FWC 790

[2015] FWC 790 [Note: An appeal pursuant to s.604 (C2015/1862) was lodged against this decision - refer to Full Bench decision dated 12 May 2015 [[2015] FWCFB 2371] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Djula
v
Centurion Transport Company Pty Ltd
(U2014/15069)

COMMISSIONER WILLIAMS PERTH, 5 FEBRUARY 2015

Termination of employment - application to amend named respondent.

[1] The decision concerns an application made on behalf of Mr David Djula (the applicant) by his representative the Transport Workers’ Union of Australia (the TWU or the union). The application is made under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application names the respondent as Centurion Transport Company Pty Ltd (the named respondent).

[2] The application was made on 12 November 2014.

[3] On 28 November 2014 the named respondent filed a form F3−Employer Response to Unfair Dismissal Application (the F3) responding to the substance of the application and asserting that the applicant had failed a second alcohol and drug test within a period of 12 months and so was dismissed.

[4] On 3 December 2014 a letter was sent to the Commission and the applicant’s representatives from the legal counsel for the named respondent advising that the named respondent was not the employer of the applicant. The letter explained that whilst the applicant was first employed by the named respondent in 2010 shortly after commencement the applicant’s employment was transferred to CFC Consolidated Pty Ltd as trustee for CFC Employment Trust. The letter also explained that the named respondent had submitted the F3 by mistake. Written documentation in support of the assertion that the applicant’s employer at the time of dismissal was CFC Consolidated Pty Ltd as trustee for CFC Employment Trust (the employer) was attached.

[5] Consequently the named respondent declined to participate in conciliation and requested the Commission hold a jurisdictional hearing.

[6] Later that same day, in response to this information provided by the named respondent, the TWU emailed the named respondent and the Commission’s Unfair Dismissal Team advising that the union will be seeking to have the Commission allow a correction to the name of the respondent in this matter in accordance with section 586 of the Act.

[7] Consequently the application was listed for hearing to determine the named respondent’s objection and the applicant’s application to amend the named respondent. This decision deals with these issues only.

Factual findings

[8] The facts are not in dispute.

[9] This unfair dismissal remedy application names the respondent as Centurion Transport Company Pty Ltd.

[10] When the applicant was employed in 2010 he was employed by the named respondent however shortly thereafter his employment was transferred to CFC Consolidated Pty Ltd as trustee for CFC Employment Trust.

[11] At the time the applicant was dismissed his employer was not the named respondent but rather CFC Consolidated Pty Ltd as trustee for CFC Employment Trust.

[12] Extracts of ASIC company records provided by the TWU show that the named respondent and the employer have the same registered office address and the same principal place of business address.

[13] The registered office address is the address for both of the companies’ accountants.

[14] The two companies however have separate management structures and separate operational structures. The named respondent operates in the north west of Western Australia and the Perth metropolitan area whilst the employer operates across the country in a range of different interests.

[15] The employer was not aware of this application until advised of its existence by the named respondent’s legal representatives on 3 December 2014.

[16] I note that both the named respondent and the employer now have that same legal representative.

[17] The applicant had a copy of an Alcohol and other Drug policy which was apparently applicable to employees of “Centurion”.

[18] The applicant had been receiving regular PAYG payment summaries which identify his employer’s correct ABN number and name CFC Employment Trust as the payer and he was provided with a separation certificate which identified the employer as CFC Consolidated Pty Ltd as trustee for CFC Employment Trust.

Submissions

For the applicant

[19] For the applicant it is argued that the fact that his employer had provided the applicant with a copy of an Alcohol and other Drug policy that refers to the business “Centurion” contributed to the applicant and his representatives making the error in naming the incorrect employer respondent.

[20] Given that both companies operate from the same principal place of business and have the same registered office it is submitted it cannot be said that the employer has been disadvantaged by the error and was unaware that the applicant was challenging his termination of employment.

[21] Mr Cardaci is a Director of both companies and will have received the original application lodged by the applicant.

[22] The Commission should exercise its power under section 586 of the Act and amend the application to make the name of the respondent to be that of the applicant’s employer at the time of his dismissal, CFC Consolidated Pty Ltd as trustee for CFC Employment Trust.

For the respondent

[23] It would be prejudicial to replace the named respondent identified on the application with the name of the employer as the applicant has sought. To do so would deny the employer with the opportunity to take other actions they may have wished to should they have been notified of the claim against them at the earliest time when it was made.

[24] With respect to the powers of the Commission it is submitted that section 586 of the Act cannot be legitimately interpreted to allow the name of a party to an application to be changed because this would be akin to setting aside the original application which named the respondent and invoking a new application naming the employer.

[25] This would be beyond power. The Full Bench decision of the Commission in Narayan v MW Engineer’s Pty Ltd 1 held at paragraph [6] “...s. 586 provides a power to correct or amend an application, or two waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application.” (Underlining added)

Consideration

[26] The first question to be considered in this matter is whether the Commission does have the power under section 586 of the Act to amend the application as the applicant submits. If the Commission does have the power to amend the application as the applicant seeks the second consideration is whether in the particular circumstances of this case the Commission should exercise its discretion to do so.

[27] The relevant section of the legislation is set out below.

“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.”

[28] In a recent Commission decision 2, Deputy President Gooley considered whether the Commission can amend an application by changing the name of the respondent.

“Can an application be amended to permit a change in the name of the Respondent?

[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 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.

[9] 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.”

[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 Senior Deputy President Watson held that s.586 of the Act provides a power for the Commission to amend the name of the Respondent.6 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.

[12] In Ioannou v Northern Belting Services Pty Ltd 8 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.9 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.

[17] I note that Mr Oznek was unrepresented, though in his original application he advised that he “was pursuing this through Human Rights Victoria and a private lawyer.”

[18] Had Mr Oznek attended the hearing he may have been able to provide a satisfactory explanation for his failure to correctly identify his employer. However he did not attend the hearing and did not seek an adjournment of the application. This was Mr Oznek’s application and the obligation was on him to persuade the Commission to exercise its discretion in his favour particularly when the application was opposed by Maric.

[19] In all the circumstances I am not prepared to exercise my discretion to permit the amendment of the application and that application is dismissed.” (Reference omitted)

[29] The nature of the amendment sought in this application is quite different from the examples inthe cases considered by Deputy President Gooley above. This current matter is not a question of whether the reference to an employer by its trading name rather than its legal name is acceptable, nor whether an employee is rightly confused because there was some form of “hybrid” employment involving a labour hire firm and a principal. Nor is this a situation where the change in the legal identity of the applicant’s employer had neither been documented nor carried out consistent with her contract unemployment and where the termination letter referred to employment with both legal entities.

[30] In this matter currently before Commission the amendment sought by the applicant is to replace the name of the respondent which is a company who was not the applicant’s employer at the time he was dismissed, but had been some four years earlier, with the name of another company that was his employer at the time he was dismissed and had been his employer for approximately four years.

[31] Further whilst the applicant may have been confused by the title of the business mentioned on the Alcohol and other Drug policy there clearly were other documents which he had been receiving from his employer for some years that more correctly referred to the true legal identity of his employer and in the case of his separation certificate identified the legal identity of his employer in full.

[32] This is not a situation where the applicant has simply made a mistake when naming his employer such as by misspelling the name or not providing the full name of his employer. The amendment sought by the applicant changes the legal entity respondent to the application which arguably changes such a fundamental element of the application that if it was allowed the original application has effectively been revoked and a new application created by the Commission. As the respondent has submitted such an amendment, on the authority of the Full Bench in Narayan v MW Engineer’s Pty Ltd 3 at [6], goes beyond the power of section 586 of the Act which is not a power to revoke or set aside an application. It would follow from this that section 586 of the Act is also not a power that allows the Commission to create an application.

[33] What is sought is not an amendment to the respondent’s name but to totally change who the respondent is. Considering the nature of the amendment sought in this matter my conclusion is that this amendment is beyond the power of section 586 of the Act and consequently the application to amend the name of the respondent is dismissed.

[34] Consequently I would uphold the objection of the named respondent who was not the applicant’s employer and dismiss the substantive application for want of jurisdiction.

[35] If I am wrong on this and there is indeed power for the Commission to make the amendment sought then there are serious considerations as to whether or not the Commission should exercise its discretion in the particular circumstances of this case and it is relevant to consider the specific provisions of the Act that apply to applications for an unfair dismissal remedy.

[36] An application made under section 394(2) of the Act must be made within 21 days after the dismissal took effect. Changing the named respondent to be a different legal entity at a time well beyond 21 days after the dismissal has the effect of circumventing this requirement. It is likely that the legislature set a statutory time limit for making unfair dismissal remedy applications for good public policy reasons. These are likely to have included providing some certainty to employers who dismiss employees that, subject to the discretion of the Commission to extend time to make an application, 21 days after they have dismissed an employee there will not be a challenge to their decision by an application to this Commission. Some certainty in this regard is obviously important for employers so that they can with some confidence replace a dismissed employee and is equally important for any replacement employee who is newly engaged.

[37] The legislation does provide that where the Commission finds there are exceptional circumstances an extension of the 21 day time frame within which to make an unfair dismissal remedy application may be allowed. Section 394(3) of the Act provides that in considering whether there are exceptional circumstances the Commission must take into account whether there would be any prejudice to the employer, including prejudice caused by the delay in making an application. This requirement of the Act would be circumvented if the Commission was to amend an application, more than 21 days after a dismissal, to change the legal entity that is the respondent. The effect of the amendment sought in this case, from the perspective of the applicant’s employer, would be to allow an application to be made against the employer three or more months after the dismissal occurred without any requirement on the Commission to have consideration for any prejudice this delay in making the application may have caused the employer.

[38] As can be seen the particular amendment sought in this case if granted would circumvent a number of express provisions of the Act potentially to the employer’s disadvantage. In my view the Commission should be very cautious in agreeing to such an amendment which would have the effect of overriding the express legislative requirements of the Act. This is particularly the case where the applicant has an alternative course of action being to discontinue this application and file a fresh application correctly naming the employer as the respondent. If this had been done the Commission would have been required to apply the statutory considerations to that application being made out of time as the legislature intended.

[39] If there is power to do so my decision is not to exercise the discretion to amend this application in this instance and rather I will uphold the objection of the named respondent and dismiss the application because the respondent was not the applicant’s employer.

[40] An order to this effect will now be issued.

COMMISSIONER

Appearances:

G Ferguson of the Transport Workers’ Union of Australia for the applicant.

B Riddle of Greemonts for the named respondent and employer.

Hearing details:

2015.

Perth:

January 30.

 1   [2013] FWCFB 2530.

 2   Yasin Oznek v Oxford Cold Storage[2015] FWC 189.

 3   [2013] FWCFB 2530.

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