Gaurav Katyal v Australian Manpower Services Pty Ltd

[2019] FWC 3043

[2019] FWC 3043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gaurav Katyal
v
Australian Manpower Services Pty Ltd
(U2018/11642)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 MAY 2019

Application for an unfair dismissal remedy.

Procedural history

[1] On 13 November 2018, Mr Gaurav Katyal made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The entity against which Mr Katyal initially brought his application objected to the application on the basis it was not his employer. In a decision 1 issued by me on 4 March 2019 (the Jurisdictional Decision), I upheld the jurisdictional objection and amended the name of the Respondent to Australian Manpower Services Pty Ltd (AMS). The matter was then programmed for an Arbitration hearing/conference on the merits of Mr Katyal’s unfair dismissal application.

[3] On 5 March 2019, a Notice of Listing was issued to the parties containing directions for the filing of material and the dates for the hearing, being 2 and 3 May 2019. Mr Katyal was directed to file his material by noon on 22 March 2019 and AMS was directed to file by noon on 8 April 2019. Accompanying the Notice of Listing, sent via express post to the registered address of AMS, was a copy of Mr Katyal’s unfair dismissal application. The Australia Post tracking ID indicates this was delivered on 6 March 2019.

[4] Mr Katyal did not comply with the direction to file his material by noon on 22 March 2019. Following a voicemail and two emails sent from my chambers regarding his overdue material, on 11 April 2019 Mr Katyal responded and requested an extension to file his material to 13 April 2019 as he was working until late. On 14 April 2019, Mr Katyal filed material.

[5] On 15 April 2019, my chambers sent a copy of Mr Katyal’s material to AMS via express post. It was also noted in the covering letter that the hearing would be proceeding only on 3 May 2019 and that it was my expectation both parties would be in attendance at the hearing. The Australia Post tracking ID indicates this was delivered on 16 April 2019. AMS did not respond to any of the Commission’s correspondence, nor did it file any material in response to Mr Katyal’s application.

Arbitration Conference/Hearing on 3 May 2019

[6] Neither Mr Katyal nor anyone representing AMS attended the Commission on 3 May 2019. The matter was called on and my Associate announced it in both the assigned hearing room and the adjacent foyer areas. Additionally, a number of attempts were made to contact Mr Katyal on his mobile phone. These calls went unanswered and there was no voicemail facility for leaving a message.

[7] Despite neither of them attending on 3 May 2019, I am however satisfied that both parties were on notice of the Conference/Hearing as a result of the Notice of Listing issued on 5 March 2019, subsequent correspondence and, in the case of AMS, accompanying delivery advice on the Australia Post website.

[8] I will therefore determine the application for unfair dismissal remedy based on the material before me.

[9] In the Jurisdictional Decision, I outlined the initial procedural history of this matter and referred to the extensive efforts made by Commission staff to both elicit information from Mr Katyal and attempt to establish the identity of his employer. I also outlined the nature of the information Mr Katyal provided. While I will not repeat all of these details in this decision, I rely on them.

Consideration

[10] Section 396 of the Act sets out the four matters I must decide before considering the merits of Mr Katyal’s unfair dismissal application. In this case, there is a difficulty in considering those matters because the material Mr Katyal has provided does not definitively establish whether he was dismissed by AMS within the meaning of s.386 of the Act, let alone the date upon which it could be determined a dismissal by AMS occurred. Had he attended the Conference/Hearing, or indeed the jurisdictional hearing on 1 March 2019, Mr Katyal may have been able to shed some light on these matters. However, this did not occur.

[11] In his Form F2 - Unfair Dismissal Application dated 13 November 2018 (Form F2), Mr Katyal identified 5 November 2018 as the date his dismissal took effect. There was no evidence produced by him that his employment was terminated in writing. In the Form F2, Mr Katyal recorded that he had not been given any information that his job “has been finished” and that his employer had stopped giving him work “since 5 November 2018.” Mr Katyal subsequently confirmed this in his material filed on 14 April 2019. He also added in that material that his employer “stopped to pick up my call.”

[12] Mr Katyal also outlined that his employment commenced on 5 June 2017. He provided the Commission with a signed Employment Agreement between him and AMS recording that full-time employment with AMS was to commence on that day. As referred to in the Jurisdictional Decision, Mr Katyal also provided the Commission with payslips detailing payments to him by five different entities. One of the payslips suggests AMS paid Mr Katyal for a 12 week period during the 2017/2018 financial year, until at least 1 October 2017. There were other payslips provided by Mr Katyal suggesting that after that time, he was paid by four other, different entities. It does not seem to be the case, based on ASIC searches, that AMS is related to any of these four other entities.

[13] While there is nothing before me that definitively establishes Mr Katyal’s employment with AMS ceased at some time after 1 October 2017, and that he then became employed by another entity, these other payslips suggest this may have occurred. Similarly, while there is nothing before me that definitively establishes that Mr Katyal was at some stage a transferring employee in relation to a transfer of business from AMS to a new employer (for example, one of the four other entities who paid him income after AMS), these other payslips suggest this could have occurred.

[14] Granted AMS has not engaged in the conduct of this matter, there is an absence of material before me establishing Mr Katyal was dismissed by AMS on 5 November 2018. The payslips from the four other entities leaves me to doubt whether he was still employed by AMS at that time. The material before me does not satisfy me that I can identify either the entity employing Mr Katyal or with whom he was engaging as at 5 November 2018. I have not been assisted by the failure of both parties to appear before me. Ultimately however, I am not satisfied Mr Katyal was employed by AMS on or about 5 November 2018.

[15] As such, I have difficulty concluding this unfair dismissal application naming AMS as the Respondent was made within the 21 day period required by s.394(2) of the Act. 2

[16] I am not satisfied Mr Katyal was employed by AMS on or about 5 November 2018, so it is difficult for me to determine whether or not he completed a period of employment with his employer of at least the minimum employment period.  3 Further, determining this requires me to be satisfied Mr Katyal has been dismissed by AMS. For the purposes of this application, I am not satisfied Mr Katyal was dismissed by AMS. This means I cannot make the required finding that Mr Katyal is, for the purposes of this application, a person protected from unfair dismissal.4

[17] As I am not satisfied Mr Katyal was dismissed by AMS, I must determine there was no dismissal consistent with the Small Business Fair Dismissal Code (the Code). 5

[18] Finally, Mr Katyal did not suggest this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and there was nothing amongst the scant details within the material before me suggesting that there was a redundancy scenario. I am satisfied this application does not involve a question of genuine redundancy. 6

Has Mr Katyal been unfairly dismissed?

[19] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[20] In circumstances where I am not satisfied Mr Katyal was dismissed by AMS within the meaning of s.386 of the Act, the requirement in s.385(a) of the Act is not satisfied.

[21] As I am not satisfied that Mr Katyal has been dismissed from his employment with AMS on or about 5 November 2018, there is no jurisdictional basis for him to pursue this unfair dismissal application. It is therefore not necessary for me to otherwise deal with ss.385(b)-(d) of the Act.

Conclusion

[22] I am not satisfied Mr Katyal was unfairly dismissed by AMS on or about 5 November 2018. It may well be that around that time he was dismissed in circumstances that gave rise to an entitlement to pursue an application for unfair dismissal remedy against another entity. However, despite having had numerous opportunities to provide the Commission with material in support of such an application and two opportunities to appear before me to argue this, Mr Katyal has failed to do so.

[23] Mr Katyal’s unfair dismissal application against AMS is dismissed and an order to this effect will be issued with this decision.

DEPUTY PRESIDENT

No Appearances.

Hearing details:

2019.

Melbourne.

3 May.

Printed by authority of the Commonwealth Government Printer

<PR707942>

 1   [2019] FWC 1425.

 2   Fair Work Act 2009 (Cth) s.396(a).

 3   Fair Work Act 2009 (Cth) s.383.

 4   Fair Work Act 2009 (Cth) s.382 and s.396(b).

 5   Fair Work Act 2009 (Cth) s.396(c).

 6   Fair Work Act 2009 (Cth) s.396(d).