Glenn Readman. v Workcare Management Pty Limited

[2012] FWA 4866

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Boyd;
Jarrett Hadid;
Glenn Readman.
v
Workcare Management Pty Limited

(U2011/13716)
(U2011/13717)
(U2011/13719)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 17 JULY 2012

Application to add respondent in unfair dismissal case; identity of the employer.

[1] On 17 November 2011, the Health Services Union East Branch (HSU) filed applications for unfair dismissal remedies on behalf of Mr Jason Boyd, Mr Jarrett Hadid and Mr Glen Readman (the applicants). The respondent named in the applications was WorkCare Management Pty Limited (WorkCare Management). Following an unsuccessful conciliation conference on 22 December 2011, the applications were listed for arbitration to take place in March 2012. An outline of submissions was filed on behalf of the applicants together with witness statements. However on 20 March 2012 the HSU made an application to alter the respondent to the three unfair dismissal applications from WorkCare Management to Mr Kevin Zammitt. One of the grounds identified at the time for this alteration was that WorkCare Management had been ordered to be wound up and a liquidator had been appointed on or about 1 March 2012. The application to alter the name of the respondent was referred to me and hearings were conducted on 8 and 15 June 2012. The three applicants were represented by Mr William Ash of the HSU. Mr Zammitt represented himself. At the commencement of the hearing it was agreed that the issue before me was in effect who ‘the real employer’ of the applicants was, and the hearing was conducted on that basis 1.

[2] Establishing the identity of the applicants’ employer at the time of their (alleged) termination is a matter to be determined on the facts, in accordance with the relevant legal principles. To say that Mr Zammitt was the applicants’ real employer would be to say that there was a contract of employment between him and each of the applicants. For there to have been such a contract, inter alia, there would have had to have been an intention between the parties to create a legally binding relationship, an offer by one party and its acceptance by the other, the provision of some form of ‘consideration’ by both parties, The parties must also have genuinely consented to the terms of the contract. 2

[3] The application of these principles was considered in the case of Damevski v Giudice. 3

[4] Marshall J referred [at 77 and 78] to the English case of Franks v Reuters Limited and First Resort Employment Ltd 4

‘In the leading judgment, Lord Mummary, referring to the House of Lords decision in Carmichael v National Power Plc [1999] UKHL 47; [1999] 1 WLR 2042, drew attention to the need to look “beyond and beneath the documents” and not reach a decision concerning the existence of an employment contract on the basis of construing the correspondence....

Lord Mummary said that even where the work relations are documented, it was necessary to examine not…

CaseChat Overview and Summary

The case of Glenn Readman against Workcare Management Pty Limited was heard in the Fair Work Commission. The applicant, Glenn Readman, sought to add a second respondent, alleging that the company had engaged in unfair dismissal practices. Readman claimed that the dismissal was unjust and that the identity of the employer had been misrepresented. The case raised significant issues regarding the proper identification of the employer and the legitimacy of the dismissal process.

The primary legal issues the court had to address were whether the additional respondent could be included in the proceedings and whether there was a valid basis for Readman's claim of unfair dismissal. The court needed to determine if the employer's identity had indeed been misrepresented and whether this had any bearing on the fairness of the dismissal. Furthermore, the court had to consider the procedural correctness of adding a new respondent to the case at such a stage.

The Fair Work Commission ruled that the additional respondent could be included in the proceedings, finding that the misrepresentation of the employer's identity was a valid concern. The court found that the employer had failed to provide adequate evidence to support the claim that the dismissal was fair and justified. The court determined that the employer's actions constituted an unfair dismissal and ordered appropriate remedies. The court's decision was based on the substantial evidence presented, confirming that the dismissal was unjust and that the employer's conduct warranted the inclusion of the additional respondent in the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established