Leandro Panza v Tutto Bene/Artusi

[2015] FWC 1777

[2015] FWC 1777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leandro Panza
v
Tutto Bene/Artusi
(U2014/14165)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 MARCH 2015

Application for relief from unfair dismissal - Amendment of Application - Complexity of simple procedural questions under the Act

[1] On Friday 13 March 2015 I heard an employer application to dismiss a matter on the grounds that it was out of time 1. I dismissed the application and reserved the right to publish further reasons for decision. These are my reasons. As will be seen, what should be a simple procedural issue is under the Act a complex issue which is extremely difficult for unrepresented litigants to deal with.

The Sequence of Events

[2] Mr.Panza made an application for an unfair dismissal remedy and named the employer as ‘tutto bene/artusi’ 2. The employer lodged an ‘employer response’ which named the employer as ‘Tutto Bene’3. The applicant was contacted because of ‘multiple respondents’ and other issues. The applicant confirmed that he only wanted to name ‘Tutto Bene’, and was asked to confirm this in writing4. He never confirmed this in writing.

[3] On 21 January 2015 the employer asked for conciliation to be cancelled and for its out of time objection to be dealt with prior to any conciliation. The out of time objection was listed before me.

Submissions

[4] At the hearing the employer submitted that the employer was in fact ‘Artusi’ not ‘Tutto Bene’, that the application was out of time because the applicant had ceased his application against Artusi, and that the application should be dismissed. It raised two other jurisdictional objections, namely that the employee was employed for less than six months, and the effective date of termination. It appears that the applicant began work with Tutto Bene on 2 July 2012 and ceased work with Tutto Bene on 22 or 23 June 2014, when (on 23 June) he began work with Artusi. He was terminated by Artusi on 20 November 2014 5. One of the questions is whether or not Tutto Bene and Artusi are associated entities. The respondent has put submissions on behalf of both Tutto Bene and Artusi, and has provided for example Payroll Advice records of Artusi.

The name of the respondent

[5] Section 586 and 588 of the Fair Work Act 2009 (‘the Act’) provide:

‘586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

…

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.’

[6] Section 577 (Performance of functions etc by FWA) of the Act requires Fair Work Australia to perform its functions and exercise its powers in a manner that, amongst other things, is fair, just and quick.

[7] Section 578 (Matters FWA must take into account in performing functions etc.) of the Act relevantly provides:

“In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; ...”

[8] Section 381 (Object of this Part) within Part 3-2 (Unfair Dismissal) of the Act prescribes:

“(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned.

Note: The expression ‘fair go all round’ was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[9] In Visscher v. BHP 6a Full Bench of the then Australian Industrial Relations Commission considered the terms of s.111(1)(p) and (q) as it then was:

“The extent of the powers conferred by s.111(1) is not defined. It is extremely wide. In re Coldham; ex p. Australian Building Construction Employees and Builders Labourers Federation Gibbs CJ, Wilson and Dawson JJ were concerned with, amongst other powers, those in s.41(1)(k) and (l) of the Conciliation and Arbitration Act 1904. Those two subparagraphs were in very similar terms to s.111(1)(p) and (q) of the Act. Their honours said:

“This Court of course recognizes that the Commission is entitled to determine its own practice, consistently with the provisions of the law and the requirements of natural justice. But the decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees’ Institute of Australasia did not merely lay down a practice - it depended on the true construction of the Act. In our opinion that decision proceeded on too narrow a view of the effect of the Act. Section 41 applies “in relation to” “any . . . proceedings before the Commission”. The word “proceedings” has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s.41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s.41 are inapplicable to the particular proceedings in question.”

It is particularly relevant to the argument advanced by Mr Visscher that the Court would permit the use of the power in circumstances where a notice is so defective that it fails to institute the desired proceeding. In that case it is still open to the Commission to use the power. Raffaelli C’s action in correcting the record is well within the scope of s.111(p) and (q) as discussed in Coldham.”

[10] In Maher v. Mulgowie Fresh Pty Ltd 7 Collier J granted an application to amend an application filed pursuant to s.773 of the Fair Work Act 2009 where the applicant was entitled to file an application pursuant to s.365 and was therefore prevented by s.772 from making an application pursuant to s.773. Collier J considered the relevant Federal Court Rules relating to amending documents, and said:

‘In this case I see no reason why the Court should not grant leave to Mr Maher to amend his substantive application on the terms he has sought. I form this view because:

• The application to amend the application comes very early in this litigation.



• There are no case management issues which might persuade the Court to refuse the application for leave to amend, as contemplated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.



• I note Ms Brace’s submissions concerning the absence of common law or statutory authority for an order to amend the substantive application as sought by Mr Maher. However I consider that O 13 r 2(7) of the Federal Court Rules confers on this Court power of sufficient breadth to do so.



• No prejudice has been demonstrated by Mulgowie should the Court grant Mr Maher leave to amend his substantive application. So, for example:

- Mulgowie has not identified any costs incurred by it which would be thrown away should leave be granted to Mr Maher to amend his application;

- It appears that no new factual or legal issues would be raised by the amendment to the substantive application, other than the substitution of the statutory basis of the application;

- Mulgowie has been on notice of Mr Maher’s intentions with respect to seeking leave to amend the substantive application since Mr Tayler’s letter of 2 March 2010.

• I note Mr Maher’s claim that he was not legally represented before Fair Work Australia, and fell into error in respect of the legislative basis of his application. I note further that this error was not drawn to his attention by Fair Work Australia, which issued a certificate pursuant to s 777.



• It is common ground that Mr Maher is out of time to commence a fresh application before Fair Work Australia. He would be significantly prejudiced should the Court refuse him leave to amend his existing substantive application.



• I note that the objectives of the Act include the provision of workplace relations laws that are fair to working Australians (s 3(a)) and which enable fairness and representation at work and the prevention of discrimination (s 3(e)). In my view, and in the apparent absence of prejudice to Mulgowie, it would be inconsistent with the Acts’ objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint.’

[11] There is some authority for the proposition that if the amendment fundamentally alters the nature of the application I should not do so: eg. Haydon 8, where the amendment was not a fundamental alteration, and other decisions where it was, such as Bennett9, Winters10, and Reisenberg11. I have also had regard to other decisions including Narayan v. MW Engineers Pty Ltd12 and Etemi v. Canterbury Child Care Centre13. This case is somewhat different, in that the applicant is not seeking to set aside a notice of discontinuance, and is not seeking to alter the statutory basis of the claim. It is narrower in that it involves an issue of who the employer is in circumstances where this was unclear.

[12] This matter concerns amendment of an unfair dismissal remedy application not a notice of discontinuance, in circumstances where the respondent identified the employer in this case as being ‘Tutto Bene’. The applicant was then contacted on this basis to amend his application by removing the name Artusi from his application, and agreed to do so. However, the applicant never confirmed this in writing which was the agreed procedure. On the material before me the actual employer at the date of termination in November 2014 was Artusi. This is the employer that should be named in the application. The applicant appears to wish to bring an action against the employer, whoever the employer is. It would therefore not be appropriate to amend the application to delete Artusi as a named respondent. There are no case management issues which might persuade me to grant the application for leave to amend, such as arose in Aon Risk Services Australia Limited v. ANU 14, where the High Court concluded that case management objectives of timely and cost-effective resolution of disputes should be followed because of the lengthy delay and the fact that the employer would face a completely new case.

[13] There is some authority for the proposition that if the amendment fundamentally alters the nature of the application I should not do so (discussed above). The present matter does not involve a fundamental alteration in the nature of the application. It is the same matter. The issue is being dealt with at an early stage in the proceedings, and no prejudice to the employer or additional costs appear to be relevant.

[14] On the other hand if I agree to the amendment pursuant to s.586, Mr.Panza would have to lodge another application. It would be out of time, and therefore there would need to be exceptional circumstances justifying an extension of time. There would be significant prejudice to Mr.Panza. Given the objects of the Act it would it ‘would be inconsistent with the Act’s objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint’, as Collier J concluded in Maher. It would not be consistent with the objects of the Act and the unfair dismissal provisions of the Act for the amendment to be made.

[15] Section 396 provides that initial matters must be considered, including whether the application was made within the period required in s.394(2) (s.396(a)), and whether the person was protected from unfair dismissal (s.396(b)). The application was made within the period required in s.394(2). The second issue is dealt with below.

Minimum Period of Employment

[16] In relation to the issue of the minimum period of employment, s.396(b) requires me to consider whether Mr.Panza was a person protected from unfair dismissal. Section 382 provides that a person is protected from unfair dismissal if he completed a period of employment of at least the minimum employment period. The minimum employment period for a small business is one year. If the business is not a small business it is six months (s.383). I also note that if Tutto Bene and Artuse are associated entities then the respondent may not be a small business. Section 23 of the Act provides that ‘associated entities are taken to be one entity’. The required period of employment would then be six months and not one year.

[17] In this case the employment period with Artusi is less than six months, and the matter must be dismissed unless service with Tutto Bene counts as relevant service. Section 384 provides that in calculating the minimum period of employment:

‘384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. ...

[18] ‘Continuous service’ is defined in s.12 as:

‘continuous service has a meaning affected by section 22.

[19] Section 22 provides:

‘When service with one employer counts as service with another employer

(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6) If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a) the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b) if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a) the following conditions are satisfied:

(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b) the following conditions are satisfied:

(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(8) A transfer of employment:

(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and

(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.

[20] An ‘associated entity’ is defined in s.12 as:

‘associated entity has the meaning given by section 50AAA of the Corporations Act 2001.’

[21] Section 50AAA of the Corporations Act 2001 provides:

‘50AAA Associated entities

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6)  This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.’

[22] In this case Mr.Panza will therefore have served the required six months service if Tutto Bene and Artusi are associated entities within s.50AAA.

[23] The respondent stated in its F3 employer response that the applicant began working for it on 2 July 2012 (question 1.2 ‘What date did the Applicant begin working for you?’). It stated in its written submission of 25 February 2015 that the applicant was terminated by Artusi on 20 November 2014, and in that submission and in the form F3 it identifies the date of termination with Tutto Bene as 22 June 2014. The applicant considers that he started employment on the same date as that identified by the respondent and finished on the Artusi termination date (F2 application, questions 1.1, 1.2).

[24] The respondent conceded that while Tutto Bene and not Artusi had been named on the listings, it represented Artusi and was able to respond. It put a written submission on behalf of both Tutto Bene and Artusi:

‘We also formally request that you ask Leandro Panza to cease pursing a claim that does not exist against either Tutto Bene (Aust) Pty Ltd or Artusi (Aust) Pty Ltd.’ 15

[25] It tendered relevant Artusi documents such as the applicant’s payslips, which suggests a close relationship between the two entities.

[26] The respondent further addressed specifically the circumstances of the dismissal by Artusi in November 2014, stating that:

‘. we confirm that he was employed by Artusi (Aust) Pty Ltd at the time of his termination claim on 20/11/14

. he was dismissed due to abusive and bullying behaviour towards staff and in front of customers both during and out side of service times

. we confirm several verbal warnings we given to correct this behaviour

. we contacted Fair Work Australia to confirm our termination rights at this time ....’ [emphasis added]

[27] It is worth noting that the respondent identifies itself as both Tutto Bene and Artusi (‘we’ is used to refer to Artusi above for example). Its communications to the Commission during this case are both from Tutto Bene and Artusi. For example an email dated 10 March 2015 from Ms.Volkoff concerning this matter has on it the Artusi address and logo. An email from Ms.Volkoff dated 21 January 2015 has on it the Tutto Bene logo. The respondent has not submitted in its written submission that Tutto Bene and Artusi are not associated entities. It has not submitted that there is another ground to avoid a transfer of employment pursuant to s.22(7). The inference to be drawn at this stage is that the entities are associated. The respondent is able and wishes to put submissions on behalf of both entities, has detailed knowledge of the employer views in each case, and access to the employer records in each case. This suggests common management and ownership.

[28] I will provide the respondent with one week to address the issue of whether or not Tutto Bene and Artusi are associated entities and to rebut these inferences if it wishes to do so. It should address the matters in s.50AAA, and provide satisfactory evidence relating to those tests. The applicant will have a week to respond. If the respondent does not respond I will determine that the two entities are associated, and that the applicant is a person protected from unfair dismissal. If the respondent seeks to submit that the two entities are not associated or that there is not six months or a year’s continuous service for some other reason I will list the matter for hearing.

DEPUTY PRESIDENT

Appearances:

Mr Leandro Panza, the applicant

Mr Luis Pampliega and Ms Tamara Volkoff, for the respondents

Hearing details:

2015

Melbourne

13 March

DIRECTIONS

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Leandro Panza
v
Tutto Bene/Artusi
(U2014/14165)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 MARCH 2015

Application for relief from unfair dismissal.

Further to my decision [2015] FWC 1777 of 18 March 2015 -

[29] The respondent (Tutto Bene and Artusi) may file in the Commission and serve on the applicant by 4.00 pm on Wednesday 25 March 2015 a submission and evidentiary material addressing the issue of whether or not Tutto Bene and Artusi are related entities and other matters.

[30] The applicant may file in the Commission and serve on the applicant a submission in response by 4.00 pm on Wednesday 1 April 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   Form F3, Employer Response to Unfair Dismissal Application; Employer email of 25 February 2015

 2   Form F2, 10 December 2014

 3   Form F3, Employer Response to Unfair Dismissal Application, 21 January 2015

 4   File Note, 13 January 2015

 5   Forms F2, F3, respondent written submission of 25 February 2015

 6   Munro J, Duncan SDP, Roberts C, PR937708, at 19

 7 Collier J, Federal Court of Australia, [2010] FCA 439 at 22

 8   [2008] AIRC 403

 9   [2007] AIRC 212

 10   [2008] AIRC 863

 11   [2010] FWA 4216

 12   [2013] FWCFB 2530

 13   [2011] FWA 5936

 14 (2009) 239 CLR 175

 15   Email from Tamar Volkoff, 25 February 2015

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562025>