Gaurav Katyal v Australianmanpowerservices or Asf protective services Trading as Australian mainland Security Division

[2019] FWC 1425

[2019] FWC 1425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gaurav Katyal
v
Australianmanpowerservices or Asf protective services Trading as Australian mainland Security Division
(U2018/11642)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 MARCH 2019

Application for an unfair dismissal remedy – Jurisdictional Objection – Applicant not an employee.

[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 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Katyal said that his employment had been terminated by “Australianmanpowerservices or Asf protective services Trading as Australian mainland Security Division” on 5 November 2018. The named contact person for the Respondent was Mr Joe Dellolio and amongst what were said to be his contact details was the email address, [email protected].

[3] A letter from the Commission dated 14 November 2018 was sent to Mr Dellolio via email and he evidently passed it onto Mr Jason Maley, the General Manager Strategy and Development for Bellrock Group. Mr Maley sent an email to the Commission dated 15 November 2018 stating that the correspondence sent to Mr Dellolio did not relate to Bellrock Group, that no assistance could be provided and that it should instead be sent to Australian Manpower Services or Australian Mainland. In a subsequent telephone conversation, Mr Maley advised Bellrock Group was not the employer. He said that Bellrock Group had a number of sites where they used other companies as subcontractors. Mr Maley advised he would send through a Form F3 – Employer Response to Unfair Dismissal Application (Form F3) declaring the objection that Bellrock Group was not the employer.

[4] Following this, contact was made with Mr Katyal and he advised the Commission he was employed by Australian Mainland Services under a contract of employment. He subsequently provided a number of further contact details and a copy of a contract of employment. This document outlined a contract of employment between Mr Katyal and Australian Manpower Services Pty Ltd (ABN 11 618 557 163) said to have commenced on 5 June 2017.

[5] Telephone calls made by Commission staff to the contact phone numbers provided by Mr Katyal were subsequently made. They did not however establish who was the relevant contact person for the Respondent in this matter. Assistance was also sought from a number of other avenues, including Mr Maley.

[6] The Commission made further enquiries aimed at establishing the employer of Mr Katyal in early December 2018. Email correspondence and phone calls were made using further particulars provided by him. There was renewed correspondence with Bellrock Group at this time, with correspondence from the Commission on 6 December 2018 stating:

“…Mr Gaurav Katyal has lodged an application with the Fair Work Commission.

Bellrock Group’s contact details have been provided to us in connection with this application.

We have also received contact details from Australian Manpower Services and ASF Group – namely Ravi Chopra and Avinash Goundar.

We have also received contact details for Joe Dellolio and Jason Maley from Bellrock Group.

We have been unsuccessful in reaching any of these contacts to confirm who Mr Gaurav Katyal’s employer was.

Could you please confirm what company Mr Gaurav Katyal was employed at?

Additionally, please provide any contact details of a contact person at that company.”

[7] Also at this time, I determined the Commission should at least proceed on the basis that Australian Manpower Services was the employer, having regard to the employment contract detailing Australian Manpower Services as his employer from 5 June 2017. The matter was listed for Arbitration.

[8] When this Notice of Listing was sent to Mr Dellolio as the employer contact on the Form F2, Mr Maley of Bellrock Group responded. He simply stated he was not an employee of ‘Australian Mainland’ or any of the other businesses named. As there had been no Form F3 provided by Mr Maley, the matter was listed for a Mention. This prompted Mr Maley to file a Form F3 stating that Mr Katyal was not employed by Bellrock Group. It was determined that this jurisdictional objection required resolution and the matter was listed for a Jurisdiction (Not the Employer) Conference/Hearing.

[9] Mr Maley and Bellrock Group have since disengaged from the Commission’s process. No material was filed and it was made clear to the Commission that there would be no appearance on behalf of Bellrock Group at the jurisdictional hearing.

[10] Mr Katyal appeared to experience difficulty in preparing his material. The listing of the jurisdictional hearing was therefore altered to give him more time to seek advice and prepare. Further, he was sent Commission template documents and granted an extension of time for the filing and service of his material. When he failed to comply with this direction and was informed this would result in the matter going to a non-compliance hearing, Mr Katyal sought and was granted a further extension. Ultimately, Mr Katyal did not file any material going to the jurisdictional objection made by Bellrock Group.

[11] The jurisdictional hearing proceeded before me on 1 March 2019. Neither party attended the Commission and nor did they submit any material. At the time it was due to commence, my Associate attempted to telephone Mr Katyal. There was no answer and the voicemail message left did not prompt a response from him. I therefore determined I would deal with the Jurisdictional Objection based on the material before the Commission.

[12] Mr Katyal has previously sent the Commission a bundle of seven payslips. They covered a period that commenced before Mr Katyal’s employment with Australian Manpower Services began and ended on 14 October 2018. The payslips suggest that during this period, Mr Katyal was paid by five different entities.

[13] The ASIC search I conducted relating to Bellrock Group revealed it holds a business name of “ASF Protective Services.” I have, however, noted there were no payslips provided by Mr Katyal from either Bellrock Group or ASF Protective Services. Nor were there any payslips from an entity called “Asf protective services Trading as Australian mainland Security Division.”

[14] As far as Australian Manpower Services is concerned, there were payslips suggesting payments made by it to Mr Katyal only covered a period of approximately 12 weeks in the 2017/2018 financial year. The last payslips from the period between the alleged commencement and termination dates detailed by Mr Katyal in his Form F2 were in the name of “Australian Mainland Solutions Pty Ltd,” however there is nothing suggesting a connection between Australian Manpower Services and this entity.

[15] No contract between Mr Katyal and Bellrock Group or ASF Protective Services has been produced and there is an absence of any payslips from either of them. This is consistent with Mr Maley’s assertion that Mr Katyal was not employed by Bellrock Group. Further, there is no documentary evidence suggesting a relationship between Mr Katyal and an entity named “Asf protective services Trading as Australian mainland Security Division.”

[16] Accordingly, I am satisfied Mr Katyal was not employed by Bellrock Group, either in its name or under the name of ASF Protective Services. Further, I am not persuaded on the material before me that “Asf protective services Trading as Australian mainland Security Division” employed him either. Therefore, I will amend the name of the Respondent in his unfair dismissal application to Australian Manpower Services Pty Ltd only and “Asf protective services Trading as Australian mainland Security Division” will be removed from the application. An order giving effect to this will be issued today and the matter will now be programmed for an Arbitration hearing/conference on the merits of Mr Katyal’s unfair dismissal application.

DEPUTY PRESIDENT

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