Kenneth Autterson v ABC Dental Alliance Pty Ltd T/A ABC Dental

[2013] FWC 9330

[2013] FWC 9330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kenneth Autterson
v
ABC Dental Alliance Pty Ltd T/A ABC Dental
(C2013/1112)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 2 DECEMBER 2013

Application to deal with contraventions involving dismissal - s.365 etc.

Introduction

[1] This is an application by Kenneth Autterson (the Applicant) for the Fair Work Commission (the Commission) to deal with a General Protections Dispute involving a dismissal.

[2] The Applicant’s F8 form was lodged with the Fair Work Commission on 23 July 2013. It stated that the Applicant was employed as a dentist at the Bondi Junction practice of ABC Dental Alliance Ltd t/as ABC Dental (the First Respondent) from 5 March 2011 to 4 July 2013 when he was dismissed. The contract of employment was attached.

[3] Mr David Lin, the company’s principal was identified as the Second Respondent.

[4] The application alleged breaches of sections 340, 343, 357, 358 and 550 of the Fair Work Act 2009 (the Act).

[5] The Applicant alleged he had been dismissed because he attempted to exercise his workplace right to pursue wages and entitlements he was owed arising from his contract of employment. He also alleged that he had been falsely treated as a contractor arising from a contract signed on 15 April 2012. In the Applicant’s submission, he always remained an employee.

[6] The First Respondent’s F8A lodged on 5 August 2013 denied that the Applicant had been employed or engaged by the First Respondent. In any event, the First Respondent denied that any workplace right had been breached. The first respondent asserted that the second contract (which they said was signed on 1 May 2012) was with KBA Dental Pty Ltd (a company set up by the Applicant in November 2011) and was a relationship between principal and independent contractor, not employment. The First Respondent further stated that the first contract, which was a contract of employment, was not with the First Respondent but with another entity, which it did not name.

Legislation

[7] Section 365 of the Act provides that where a person has been dismissed, allegedly in contravention of Part 3-1 of the Act, they may apply to the Commission.

[8] Section 368 requires the Commission to hold a conference to attempt to settle the dispute.

[9] Section 369 provides:

“369 Certificate if dispute not resolved

If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect.”

[10] Section 371 provides that a certificate issued pursuant to s.369 is necessary for a general protections court application to be taken forward. Importantly, for this matter, s.366 provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay);

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

Conciliation Proceedings

[11] As required, a conference took place on 9 August 2013. Mr R. Hassall, Sparke Helmore Lawyers represented the Applicant and the Respondents were represented by Ms S. Nicols, Gadens Solicitors.

[12] No agreement was reached. The conference was adjourned for the parties to consider their positions given the jurisdictional issues that were raised and the possible amendment of the application.

[13] I conducted a telephone conference on 28 August so that the parties could report back on the result of their deliberations.

[14] No progress had been made. Accordingly, I issued directions on 28 August, as agreed at the telephone conference, that:

1. The Applicant would file an amended application by 4 September, together with any submissions/evidence in support.

2 The Respondent(s) would file and serve submissions/evidence by 23 September.

3. The matter was listed for hearing on 9 October.

Issues for Hearing

[15] The Applicant’s amended application was filed on 4 September. The substantive changes were:

1. The addition, as the Third Respondent of, “Lin Business Services Pty Ltd as trustee for Lin Services Trust”.

2. The substitution of the employment contract signed by the Applicant with “Lin Services Trust trading as ABC Dental” as the employer.

[16] There was no change to the substance of the claim.

[17] It is important to note that within the body of the contract the employer is called “ABC Dental”.

[18] As a result of the interchange between the respective lawyers, it was established that:

● The Applicant had actually signed, at the commencement of his employment, the employment contract with the Third Respondent even though he had initially been sent a contract with the First Respondent.

● The Applicant’s payroll advices referred to “Lin Services Trust”.

[19] Gaden’s letter of 22 August to Sparke Helmore finally confirmed by inference that the Applicant signed an employment contract with the Third Respondent.

[20] The Applicant sought the following orders:

● Pursuant to s.586(a), granting leave to amend the application to add the Third Respondent.

● Pursuant to s.366(2), extending the time in which the amended application can be lodged.

[21] Further, if I am satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be unsuccessful, I would issue the certificate to that effect, pursuant to s.369.

[22] At the 9 October hearing, the Applicant was represented by Mr Y. Shariff of counsel and the Respondent by Mr M. Seck of counsel.

[23] The Applicant submitted:

● Notwithstanding the legal entities which were named in the contracts, the Applicant regarded himself as employed by “ABC Dental”.

● His day to day working arrangements did not change.

● Whatever the nature of the relationship, the Applicant pursued the s.365 application as speedily as he could. The original application was lodged in time and the amendment was lodged in a reasonable time following the identification of the Third Respondent. Mr Hassall’s statement set out the steps taken in detail.

● At all times the Second Respondent was the decision maker as employer.

● The Applicant and his legal representative acted in accordance with their best understanding of the identity of the employer at all times.

[24] The Respondent submitted:

● The employment relationship between the Applicant and the Third Respondent ceased on or around 15 April 2013 when the independent contractor agreement was entered into. The application is therefore grossly out of time.

● The Applicant delayed unreasonably in amending the application after the conciliation conference and therefore should not be granted an extension pursuant to s.366(2). Exceptional circumstances “do not exist which would justify such an extension”.

● The independent contractor agreement was “put on hold” on 4 July 2013 rather than the Applicant being dismissed.

[25] The hearing mainly consisted of cross-examination of the Applicant and evidence from the lawyers. I found the Applicant a credible witness. I note that the Second Respondent did not give evidence even though he was in attendance.

[26] The matter was not concluded and was finalised, by agreement, by written submissions lodged as follows:

● Applicant, 21 October 2013;

● Respondent 30 October 2013;

● Applicant in reply, 6 November 2013.

Approach of the Commission

[27] The question to be decided in this case is whether I should grant a certificate pursuant to s.369 allowing the Applicant, in the absence of the reasonable likelihood of settlement, to pursue his claims in an eligible court. In order to do this, I need to identify the parties and determine whether the application is in time, and if not, grant an extension pursuant to s.366(2).

[28] The Full Bench decision in Ms Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital [2013] FWC FB 6321 (3 September 2013) (Topero) was handed down between the initial conference and the hearing. The Full Bench decided that the Commission does not need to make a determination that the Applicant in a s.365 proceeding has been “dismissed” prior to conducting a conference under s.368 and, ultimately, issuing a certificate under s.369.

[29] The Full Bench extensively discussed the Commission’s role in s.365 applications. They decided that the Commission should not engage “in any sort of determinative process in dealing with a s.365 application” (Para 23). “It is the allegation of dismissal which is sufficient to establish the Commission’s power to deal with the matter”. (Para 50)

[30] Similarly, in Lee Price v John Holland Group Pty Ltd (2013) FWC 3329 (Price), Deputy President Sams noted that the Commission’s powers under s.368, s.369 and s.370 are not to determine the legal rights and obligations of the parties. The Commission’s role is to conciliate. It should not allow questions of form to stop applicants being able to pursue their claims further. Moreover, the forms lodged in these matters are not precise legal pleadings.

[31] The objects of the Act require the Commission to get to the substance of a matter and, in order to do justice between the parties, not be diverted by questions of form. This is particularly the case where the Commission has a preliminary conciliation role.

[32] This case involves a dispute about the identity of the parties and the nature of the various contractual relationships. However, the approach of the Full Bench in Topero means I should focus on the allegation rather than finally determining legal issues which may be determined at a later stage.

[33] I accept however that in order to discharge its responsibilities, the Commission should identify the parties and it must apply s.366. Obviously these matters are intertwined in this case.

[34] I note also that the General Protections section of the Act do not, mostly, require an employment relationship. Section 342 sets out the type of adverse action that may arise from various relationships. This emphasizes that precise analysis of employment contracts should not prevent an applicant pursuing his claim beyond the conciliation stage.

Conclusion

[35] Consistent with the approach I have summarised above, I have decided to exercise my discretion pursuant to s.586 to allow the amendment of the Applicant/and waiving any “irregularity in the form or manner in which the application was made” to add the Third Respondent.

[36] In doing so I have taken into account that:

● The Applicant’s evidence, which I have accepted, was that he always acted on the basis that “ABC Dental” was his real employer and the Second Respondent was his “boss”.

● The three contracts referred to “ABC Dental” and the day to day operation of the dental practice did not change.

● If the Applicant had the documentation which showed the identity of the employer from March 2011, it would have been named in the F8 form. There is no reason for the Applicant to be denied the opportunity to pursue his claim because of this lack of information.

● The Applicant’s argument is that the employment contract with the Third Respondent was not terminated until the dismissal on 4 July 2013. There should be an opportunity for this to be argued further in the court if the Applicant pursues the matter.

● In the context of how this matter proceeded, the Applicant and his legal representatives took reasonably diligent steps to determine the identity of the original employer.

[37] Most of the focus of submissions and evidence focussed on the time limit issue, both prior to the alleged dismissal on 4 July 2013 and up to the 8 October hearing. I have taken into account all of this material.

[38] The original application was, on its face, within time. The alleged dismissal was on 4 July 2013. The F8 form was lodged on 23 July.

[39] Although there was some dispute on this, I accept that the alleged dismissal took place on 4 July. Whatever the legal relationship, employment or independent contractor, it was ended then. The Applicant was locked out of the dental practice. The precise relationship is a matter for future argument.

[40] I accept that s.366(2) needs to be applied because of the amended application lodged on 4 September 2013. In its absence the correct parties may not be identified.

[41] I have decided that an extension of time pursuant to s.366(2) should be granted because there are exceptional circumstances.

[42] In particular, with respect to the matters set out in the five subsections of s.366(2), I find:

1. Subsection (a)

The reason for the delay was because of the Applicant’s available information on the employing legal entity. This was entirely understandable, given his focus on his dental work. He was reasonably diligent in pursuing the clarification of this issue faced with a lack of co-operation by the respondents and their legal representatives.

I also find that the Applicant’s solicitor was reasonably diligent in pursuing this matter. It is important to remember that following the initial conference on 8 August, the parties were operating in accordance with directions made by the Commission which were agreed by the parties. These were complied with.

2. Subsection (b)

The Applicant took prompt and appropriate action to dispute the dismissal. He confronted the Second Respondent and then engaged experienced legal representatives. The original application was lodged within the statutory time limit.

3. Subsection (c)

I find that the extension and delay does not lead to any prejudice to the employer. The Second Respondent has been well aware of the Applicant’s claims for some time. Neither he nor his legal representatives have been particularly forthcoming in clarifying the identity of the employing entity or in attempting to settle the claims.

4. Subsection (d)

It is apparent from the submissions and documentary and witness evidence that the Applicant’s claim is of substance. There are important issues and substantial amounts of money in contest. There is nothing in respect of the merits which points to permission not being granted.

5. Subsection (e)

There was no evidence of other persons in a like position.

Section 369 Certificate

[43] I have decided that an extension of time shall be allowed so that the Applicant’s amended application, which was lodged on 4 September, is within time and complies with s.366. I have also decided to exercise my discretion, pursuant to s.586, to add the Third Respondent to the application. Accordingly, a certificate pursuant to s.369 will be issued together with this decision. The certificate will identify the Applicant and the three respondents.

DEPUTY PRESIDENT

Appearances:

Y. Shariff of counsel with R. Hassall, solicitor for the applicant.

M. Seck of counsel with S. Nicols and S. Loehr, solicitors for the respondent.

Hearing details:

2013

Sydney:

August 9 (conference), 28 (telephone conference)

October 9 (hearing)

Final written submissions:

Applicant, 21 October 2013;

Respondent, 30 October 2013;

Applicant in reply, 6 November 2013.

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