Karl Bennett v Australian Security and Protection Pty Ltd

[2013] FWC 10133

[2013] FWC 10133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karl Bennett
v
Australian Security and Protection Pty Ltd
(U2013/8932)

VICE PRESIDENT LAWLER SYDNEY, 20 DECEMBER 2013

[1] On 17 October 2013 the Commission conducted a hearing of an unfair dismissal application brought by Mr Karl Bennett against his employer, named in the application as “ASAP Security”. The Commission delivered an ex tempore decision finding that Mr Bennett’s dismissal was harsh, unjust or unreasonable and issued an order, PR543454, requiring the employer pay compensation to Mr Bennett in the sum of $24,310.

[2] At the hearing, the employer was represented by the executive assistant to the managing director, Mr Dominic Collier. On the evidence at the hearing, Mr Collier was responsible for the decision to dismiss Mr Bennett. Mr Bennett did not make himself available on the day of the hearing and was not even contactable by telephone. The evidentiary case brought by Mr Bennett was overwhelming and included computer generated records of his employer that provided compelling corroboration of his central claim that the reason given asserted to him for not providing further work was false.

[3] The respondent employer named in the originating application was:

“ASAP Security T/A ASAP Armoured Australian Security and Protection”

[4] It transpires that the correct legal name of the entity Mr Bennett was intending to sue as his employer was:

“Australian Security and Protection Pty Ltd”

[5] Seeking to facilitate enforcement of the Commission’s order, the solicitors now acting for Mr Bennett have sought a correction to the name of the respondent in the Commission’s order.

[6] On 9 December 2013 my Associate sent an email to ASAP Office Administration and to Mr Collier forwarding an email from Mr Bennett’s solicitors that sought a correction of the Commission’s order to incorporate the correct name of the respondent employer. My Associate’s email asked whether there was any reason why the order should not be amended pursuant to s.586(a) and or s.602 of the Fair Work Act 2009 to reflect the correct name of the company and invited submissions if there was to be any opposition to such a correction.

[7] On 13 December 2013 Mr Collier, the managing director of ASAP Armoured Australian Security and Protection Pty Ltd, sent an email (from the email address, [email protected]) to my Associate stating:

“This is not a simple typing error needing correction, which company Karl worked for is one of the key components of this case.

Karl began work for one company, left it’s employ due to his own negligence and volition then began work at another, then sought work back at the first after walking out on the second.

This significantly alters the prima facie case and also changes who our representative for the case is as both companies Karl worked for are owned and directed by different persons.

Danielle’s primary aim was to first ascertain which company was being brought to summons. She apparently did not do this and was overwhelmed throughout believing she needed to appear anyway.

There are also significant errors in the case both in fact and finding that the company, dependant (sic) upon which one that is, will no doubt wish to pursue once it is identified.”

(emphasis added)

[8] The hearing was conducted on the basis that Mr Collier was the guiding mind of Mr Bennett’s employer and involved in the events leading to his alleged dismissal.

[9] There is a tension between the assertion in the penultimate paragraph and the fact that Ms Parle attended the hearing equipped with three statements/statutory declarations - including one from Mr Collier - and sought to rely upon them at the hearing.

[10] I note that Mr Collier does not in terms claim that Mr Bennett was working for some legal entity other than “Australian Security and Protection Pty Ltd” at the time of his dismissal. The emphasised words in the last paragraph of the email are too cute by half.

[11] Mr Collier’s email has a graphic signoff block with the name “Australian Security and Protection” in bold letters, identifying Mr Collier as managing director and bearing the ASIAL logo.

[12] Mr Bennett intended to bring an unfair dismissal application against the entity that was his employer. The company with the legal name “Australian Security and Protection Pty Ltd” is the entity that, as a matter of practical reality, responded to the application as the employer. A Form F3 “Employer’s Response to Application for Unfair Dismissal remedy” was filed on behalf of the employer by the Australian Security Industry Association (ASIAL), an employer association acting as the employer’s representative. That Form F3 noted that the legal name of the respondent employer was “Australian Security and Protection Pty Ltd”. ASIAL later filed a Notice of Representative Ceasing to Act stating that ASIAL had ceased to act for the respondent, “ASAP Security”, and providing its correct name as: “Australian Security and Protection Pty Ltd” and identifying “Dominic Collier” with the email [email protected] as the new contact person for the respondent employer.

[13] Moreover, the company named “Australian Security and Protection Pty Ltd” has an Australian Business Number, ABN93097312395. Mr Bennett has provided a copy of a pay advice issued by his employer (“ASAP”) with that same ABN number. It also provides the same contact number as the office number provided in Collier’s email graphic signoff block.

[14] There in fact no confusion on the part of the ASIAL, the respondent’s representative, as to the entity that Mr Bennett had been intending to sue as his employer.

[15] Mr Collier’s claim of confusion and uncertainty as between two entitles is disingenuous and I reject it as deliberately misleading.

[16] This is a case of simple and minor accidental misnaming of a party in the originating application and an error by the Commission in failing to use the correct name of the employer as provided by ASIAL when preparing the order.

[17] There cannot be any doubt that the Commission has power to correct an error of the sort that occurred in this case and should do so. Mr Collier has not identified any proper basis for refusing to make that correction as a matter of discretion. I am satisfied that in the exercise of my discretion, the correction sought by Mr Bennett should be made. A correction order has issued in conjunction with these reasons for decision.

VICE PRESIDENT

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