Jarrah Spraggon v Metroll Manufacturing Pty Ltd

[2016] FWC 4702

[2016] FWC 4702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jarrah Spraggon
v
Metroll Manufacturing Pty Ltd
(U2016/2605)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Jarrah Spraggon filed an unfair dismissal application against Metroll Manufacturing Pty Ltd. Metroll Manufacturing objected to his application on the basis that it was not his employer. The employer response form was filed by Mr Shan Kanji, the Secretary of Metroll Manufacturing.

[2] On 14 June 2016, Mr Spraggon advised the Commission and Metro Manufacturing that he sought to amend his application to name Metroll Perth Pty Ltd as the Respondent.

[3] Ms Bronwyn Chalmers, on behalf of Metro Manufacturing, advised that there was no mechanism to amend an application. It opposed the application and advised that Mr Spraggon would need to make a fresh application which was out of time.

[4] On 29 June 2016, I advised the parties that if Mr Spraggon wished to amend his application in accordance with s.586 he could do so by filing a form F1 and that Metroll Perth Pty Ltd would be given the opportunity to be heard.

[5] Metroll Perth did not consent to being named as the Respondent and the matter was listed for hearing on 13 July 2016.

[6] At the hearing, I granted Mr Spraggon permission to be represented by a lawyer as I accepted the submission that the matter involved some complexity and it would enable the matter to be dealt with more efficiently. Mr Kanji, an officer of both Metroll Manufacturing and Metroll Perth, who appeared for both companies, did not object to permission being granted.

[7] Mr Spraggon submitted that he was confused about the true identity of his employer. When he filed his application he had in his possession letters dated 10 September 2013 and July 2014 from Metroll Manufacturing advising him of a payrise; a contract of employment with Metroll Manufacturing dated 23 December 2014; a payslip dated 31 December 2015 from Metroll Manufacturing; and a letter from Metroll Building Products accepting the resignation which had no ABN number on it.

[8] After receiving the employer response, Mr Spraggon located a recent payslip which disclosed the name Metroll Perth Pty Ltd.

[9] He said that as a result he recalled that in December 2015 he was asked to sign some documents and he was told that it would not effect his pay and conditions. He now realises that these documents may have changed the identity of his employer.

[10] Metroll Perth submitted that Mr Spraggon was aware that he had not worked for Metroll Manufacturing since 15 December 2015. On that date he received a letter of offer of employment from Metroll Perth which he accepted. That letter was signed by Mr Brett O’Mara on behalf of both companies. His payslips from that date were from Metroll Perth. It submitted there was no reason why Mr Spraggon did not make an application against the correct employer.

[11] It was submitted that Metroll Manufacturing and Metroll Perth are not related bodies corporate as defined by s.50 of the Corporations Act 2001.

[12] It was further submitted that the amendment should not be permitted because Mr Spraggon’s claim was bound to fail because he had not been dismissed. It submitted that calling a meeting with an employee to discuss the employee’s performance would not support a finding that Mr Spraggon had been forced to resign because of conduct of his employer.

[13] It was submitted that Metroll Perth took over a contract from Metroll Manufacturing and that Metroll Manufacturing had ceased to operate. It was submitted that just because Mr Kanji was an officer of both companies it should not be inferred that Metroll Perth was aware of the application which named Metroll Manufacturing as the Respondent. It was said that Metroll Perth would be prejudiced if the amendment were permitted because the application to amend was made more than 21 days after the dismissal took effect and Metroll Perth had made changes as a result of the decision of Mr Spraggon to resign.

[14] It is clear from the Full Bench in Djula v Centurion Transport Co Pty Ltd that s.586 does empower the Commission to vary the identity of a respondent to a proceeding.

[15] The decision to permit the amendment is discretionary.

[16] I am satisfied that given the nature of the change in Mr Spraggon’s employer that it is unsurprising that he treated the change as being of no significance. I accept that the two companies are not related bodies corporate as defined by s.50 of the Corporations Act 2001. However the letter of offer sent to Mr Spraggon was signed by Mr Brett O’Mara on behalf of both companies. Mr Shan Kanji who is the Secretary of Metro Manufacturing signed the objection to the application to amend on behalf of Metroll Perth. Both companies operated from the same address and have the same phone numbers. The letter accepting Mr Spraggon’s resignation was from Metroll Building Products and did not refer to the true identity of the employer. Further while Mr Spraggon’s application listed Metroll Manufacturing as the legal name of the Respondent, it listed Metroll Perth as the trading name.

[17] I am satisfied that Mr Spraggon mistakenly listed Metroll Manufacturing as the employing entity.

[18] I do not accept the submission that Metroll Perth was unaware of the application. Mr Kanji was an officer of both companies. He is more than a post box for the businesses for which he is an officer. He was aware of the application made against Metroll Manufacturing. He made the objection and advised that it was not the employer. Mr Kanji was aware that Metroll Perth had taken over the business of Metroll Manufacturing. From the application Mr Kanji must have realised that Mr Spraggon had been employed by Metroll Perth.

[19] I am satisfied that there is no or limited prejudice to Metroll Perth if the name is changed. I am satisfied that it was aware of this application when it was made.

[20] I have considered whether I should exercise my discretion in circumstances where Mr Spraggon resigned his employment. I accept that a highly unmeritorious claim may mean that I should not approve the amendment. However I am not able, on the material before me, to conclude that Mr Spraggon’s claim is without merit.

[21] I am therefore prepared to exercise my discretion and vary the name of the respondent to Metroll Perth Pty Ltd. The application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

J. McKenna for the Applicant.

B. Chalmers and S. Kanji for the Respondent.

Hearing details:

2016.

Melbourne:

13 July.

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