Julia Aspromonte v Michael Olsen T/A Precision Mining Camps and Services
[2013] FWC 200
•9 JANUARY 2013
[2013] FWC 200 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Julia Aspromonte
v
Michael Olsen T/A Precision Mining Camps and Services
(U2012/9902)
COMMISSIONER WILLIAMS | PERTH, 9 JANUARY 2013 |
[1] This decision deals with applications made under s. 394 of the Fair Work Act 2009.
[2] On 5 October 2012 the applicant, Julia Aspromonte, lodged a Form F2 Application for Unfair Dismissal Remedy which is identified as U2012 / 9902.
[3] On that Form F2 she included the following information;
Respondent (Employer)
Legal name: Michael Olsen
Trading name: Precision Mining Camps and Services
ABN:[ if known] 51 126 255 936
Address: 5/63 Knutsford Avenue
Suburb: Rivervale
State: WA
Postcode: 6103
Contact person: Michael Olsen
E-mail: [email protected]
Telephone: 9477 6330
Mobile: 0401 691 241
[4] On 23 October 2012 Mr Michael Olsen lodged a Form F3 Employers Response to Application for Unfair Dismissal Remedy.
[5] In this response under the heading of jurisdictional objections Mr Olsen wrote:
1. The Applicants application has been wrongly filed against me.
2. I was not the employer of the Applicant nor do I trade as Precision Mining Camps and Services.
3. Accordingly the Applicants application should be dismissed.
4. Fairwork does not have the jurisdiction to determine this application and any orders made by Fairwork in regards to the Applicants application will be invalid as I am not the Employer.
5. There is no basis whatsoever for the application against me.”
[6] This Form F3 was signed by Michael Olsen in his Capacity/Position as “ General Manager /Director”
[7] On 25 October 2012 the applicant sent an email to Fair Work Australia headed
“Re: Fair Work Australia matter U2012/9902 -- Aspromonte v Michael Olsen.”
That e-mail said:
“Please find attached a request to amend my initial application....”
Attached to this application was a Form F2 Application for Unfair Dismissal Remedy which the staff of the Fair Work Australia registry numbered as U2012/14494.
[8] On this second form F2 the applicant included the following information
Respondent (Employer)
Legal name: Precision Catering & Equipment
Trading name: Precision Mining Camps and Services
ABN:[ if known] 51 126 255 936
Address: 4/63 Knutsford Avenue
Suburb: Rivervale
State: WA
Postcode: 6103
Contact person: Michael Olsen
E-mail: [email protected]
Telephone: -
Mobile: 0401 691 241
[9] In the body of the second Form F2 the applicant wrote as follows:
“FWA matter: U2012/9902
I would like to request an amendment to my initial application for unfair dismissal on grounds of a technical error on my initial application. The company ABN of my previous employer refers to the trading name as Precision Catering & Equipment, however I lodged my claim under the name of Precision Mining Camps and Services. As I understood, this was the name of the Company I was employed under per my payslips, per all employment contracts I wrote up and per the letter of dismissal received from Michael Olsen (all attached). I was not aware of the technical name as it was not used on a day to day basis with my communications with the Company or on behalf of the Company per my business card and e-mail correspondences.”
[10] On 23rd October, 2012 at 6 PM, I received an e-mail from Michael Olsen with the F3 Form attached to request the matter be dismissed by FWA due to the application being wrongly filed against him. As I was not aware of the technical error prior to this, I would like FWA to reconsider my claim that was submitted in good faith on time within the 14 day period and hope not to be prejudiced by this unintended error.”
[11] The parties were notified that both the above applications would be listed for hearing on Monday, 7 January 2013.
[12] On Thursday, 3 January 2013 the applicant by e-mail requested an adjournment of the matter because she was unable to attend the listed hearing as she had gained other employment and was no longer in Perth. This request for an adjournment was forwarded to the respondent for their comment. No comment was received from the respondent and the matter proceeded at the notified time of the hearing on Monday 7 January 2013.
[13] At the hearing the respondent opposed the request for an adjournment.
[14] Accordingly on the basis that neither party was calling witnesses and the matters to be dealt with at this point were the jurisdictional objection raised by Michael Olsen and the request by the applicant to amend the first application I proceeded to deal with these preliminary matters notwithstanding the absence of the applicant.
The respondent’s position.
[15] At the hearing of this matter Michael Olsen was represented by Mr Ko from Trinix Lawyers.
[16] The jurisdictional objection was pressed that Mr Olsen was not the applicants employer and so application U2012 / 9902 should be dismissed.
[17] Mr Olsen’s lawyers have provided to the tribunal a business name search for Precision Mining Camps and Services which demonstrates that the owner of that business name is Precision Catering & Equipment Pty Ltd and that extract from the National Business Names register of ASIC states that the ABN number is 51 126 255 936.
[18] It was acknowledged that Mr Olsen is a director of Precision Catering & Equipment Pty Ltd trading as Precision Mining Camps and Services.
[19] With respect to the second application U2012 / 14494 on behalf of Mr Olsen it was submitted that the applicant should be not be given a second chance to pursue this matter against her previous employer.
Consideration
[20] In the matter of Tobias Pty Ltd v Jessica Vidacic 2011 FWA FB 1679 a Full Bench of Fair Work Australia considered circumstances where the respondent named in an originating application for an unfair dismissal claim was identified by trading name only and whether the specification of the trading name only was sufficient. The Full Bench in consideration of this issue found as follows:
Identity of the Respondent
[35] In our view the naming of the respondent in the originating application by reference to its trading name rather than legal name did not deprive the Commissioner of jurisdiction to proceed with the arbitration hearing in the absence of the respondent. It is clear that in the ordinary courts of justice a misnaming of this sort will mean that there is no valid proceeding on foot against the correct legal entity. However, in our view, that position does not apply in relation to a tribunal such as Fair Work Australia that is not a court and is, strictly speaking, an administrative tribunal - albeit one that is required to act judicially.
[36] In Devane v Gati 7 the High Court was concerned with an appeal against a decision of a magistrate dismissing informations against a Mr Gati and a Mr Sebastian for breach of a federal award on the basis that the relevant named respondent in the award was “Gaty Clothing Co”. In fact, Mr Gati and Mr Sebastian carried on business in a partnership that traded as the “Gaty Clothing Co”. This was the trading name or firm name of the partnership and was not a separate legal entity. In allowing the appeals, the High Court unanimously upheld the validity of informations:8
“When the informations came on for hearing before the court of petty sessions the objection was taken that the defendants could not be proceeded against because in the award only the firm was bound and, further, that the firm was not a separate legal entity. The magistrate gave effect to this objection and dismissed the informations.
In our opinion the objection was without foundation. It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business. The rule of the common law was that for the purpose of suits and proceedings in the ordinary courts of justice the parties must be named as individual persons and the firm name did not satisfy this requirement, although for many other purposes it is recognized as a collective description. But the rule does not govern the industrial proceedings of the Court of Conciliation and Arbitration. It was perfectly proper for the informant to name them individually in the informations and, indeed, that was the only manner in which they could regularly be prosecuted in the present proceedings.
The rule which the magistrate applied was inapplicable to the proceedings and accordingly the dismissal was based on an erroneous ground. The informations were not heard on the merits; it is therefore necessary to remit them for hearing.”
(emphasis added).
[37] Thus, the Commonwealth Court of Conciliation and Arbitration, exercising a function that we now know did not involve an exercise of judicial power, was able to make an valid award against an employer named in the relevant dispute proceedings by reference to a trading name or firm name rather than its correct legal name. 9
[38] As was noted by the Full Bench of the AIRC in Morgan v Kittochside Nominees Pty Ltd 10, to this authority may be added the weight of the view of members of the High Court in R v Alley11 “to the effect that precision in the specification of parties to a dispute is not of the essence, provided the employer entity or entities are ascertainable.”12
[39] There is a decision of the Full Court of the Australian Industrial Court in Perks v Regatta Carlton Hotels Pty Ltd which at first blush appears to be a contrary authority. A summary of that decision appears at (1974) 16 AILR 320. That summary records that the court dismissed summonses for penalties against Regatta Carlton Hotels Pty Ltd in respect of an alleged breach of a federal award that purported to bind the “Regatta Hotel” at Toowong. It appears to have been accepted that the “Regatta Hotel” was owned and operated by Regatta Hotels Carlton Pty Ltd. The review summarises the decision of the court as follows:
“It was necessary to refer to a legal entity and a reference to business premises did not satisfy this requirement.”
[40] There is no reference to Devane v Gati in the AILR summary of Perks. The decision in Perks may be explained on the basis that the Australian Industrial Court is a (post-Boilermakers) court and the decision involves nothing more than an application of the conventional principles applying in the courts. In any event, the summary of the decision is, in any event, inconsistent with the decision of the High Court in Devane v Gati. We will, of course, follow the High Court.
[41] It was not contested that Tobiahs was, at the time of the dismissal and the time the originating application was filed, the sole proprietor of the trading name “Foxtons Estate Agents”. At those times, that trading name, whilst not the name of a legal entity, could refer to one and only one legal entity, namely, Tobiahs. Upon seeing the originating application, there could be no confusion in the mind of Mr Fakhri, the alter ego of Tobiahs, that the legal entity that was the employer the application was directed to was Tobiahs.
[21] So it was that the Full Bench determined that identifying the respondent by reference only to its trading name does not deprive the tribunal of jurisdiction to proceed with a hearing of the substantive application. Precision in the specification of the employer’s identity by the applicant is not essential provided the employer entity is ascertainable.
[22] In my view in this instance, as was the case before the Full Bench above, upon seeing the original application U 2012 / 9902 the directors of Precision Catering & Equipment Pty Ltd could not have been confused that the application was directed towards Precision Catering & Equipment Pty Ltd. This application had identified the correct business name and the correct place of business address and the correct ABN number. Mr Olsen had personally responded to the application. I am also satisfied that Precision Catering & Equipment Pty Ltd has from the outset been aware of the application lodged against them by the applicant and have had the opportunity to put submissions regarding these preliminary matters and indeed were invited to do so through my earlier correspondence with Trinix Lawyers prior to the hearing of this matter
[23] Application U2012 / 9902 more than adequately identified the applicants employer. Consequently it is my decision that the jurisdictional objection raised by Mr Michael Olsen will be dismissed.
[24] With respect to application U2012 / 14494 this is not a second application for an unfair dismissal remedy rather it is merely an application to amend the original application U2012 / 9902. Consequently file number U2012 / 14494 will be closed.
[25] For clarity for the future I will exercise my powers under section 586 of the Act such that the details of the respondent in application U 2012 / 9902 will now be as follows:
Respondent (Employer)
Legal name: Precision Catering & Equipment Pty Ltd
Trading name: Precision Mining Camps and Services
ABN:[ if known] 51 126 255 936
Address: Unit 5/ 63 Knutsford Avenue
Suburb: Rivervale
State: WA
Postcode: 6103
Contact person: Michael Olsen
E-mail: [email protected]
Telephone: -
Mobile: 0401 691 241
With this amendment application U2012 / 9902 will now be referred for conciliation. A Fair Work Commission conciliator will contact the parties in due course to arrange this.
COMMISSIONER
Appearances: Mr Calvin Ko for the Respondent
Hearing details: 7 January 2013
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