DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Lili Sinden
v
HDR Inc.; HDR Pty Limited
(C2018/5395)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER MCKENNA

SYDNEY, 21 NOVEMBER 2018

Introduction and background

[1] Ms Lili Sinden has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Kovacic issued on 7 September 2018 1 (Decision). The Decision concerned an interlocutory application by Ms Sinden to amend an application she had made pursuant to s 365 of the Fair Work Act 2009 (FW Act). The amendment sought was to correct an error in the description of Ms Sinden’s former employer. In the Decision the Deputy President declined to allow the amendment. Ms Sinden contends in her appeal that the Deputy President erred in so deciding.

[2] The background facts of this matter may be summarised as follows:

(1) Ms Sinden was employed, until her dismissal, by an Australian company named “HDR Pty Limited”, which uses the trading name “HDR” 2 and has the Australian Business Number (ABN) “76 158 075 220” and the Australian Company Number (ACN) “158 075 220”.

(2) Ms Sinden was HDR Pty Limited’s National Head of Human Resources and a member of HDR Pty Limited’s Senior Leadership Team at the time of her dismissal.

(3) Ms Sinden was informed that she was dismissed at a meeting on 26 March 2018, and this was confirmed by way of a letter dated 29 March 2018. The letter appeared under a letterhead which stated “HDR” in stylised form. The letter was signed by “Stephen Auld, Managing Director”. Underneath his signature bloc, the web address “hdrinc.com” appeared. Underneath this were a number of contact details, which included another web address, “hdrinc.com.au”, and the name “HDR Pty Limited ABN 76 158 075 220 trading as HDR”.

(4) Mills Oakley Lawyers have represented HDR Pty Limited in dealings with Ms Sinden’s legal representatives, and Ms Sinden personally, concerning the dismissal since it occurred. However, correspondence to Ms Sinden from Mills Oakley Lawyers dated 27 and 28 March and 10 April 2018 only stated that Mills Oakley acted for “HDR”.

(5) Ms Sinden’s s 365 application, which was filed on 11 April 2018, was made using the standard Form F8 - General protections application involving dismissal. The Form F8 requires an applicant to identify what the form calls “The Respondent” and describes as “… the details of the person or business that dismissed you”. The application gave the legal name of that business as being “HDR Inc.”, and gave its trading name as “HDR”. The Form F8 also requires the identification of the respondent’s “ABN/ACN”, and the application gave in response the number “76 158 075 220”. The respondent’s contact details were identified as “Bill Manhart CPO

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCFB 6934
Decision Date: 21 NOVEMBER 2018

CaseChat Overview and Summary

Lili Sinden has appealed the Fair Work Commission's decision to decline her application to amend her general protections application, which she filed after being dismissed by HDR Pty Limited. The appeal was brought against HDR Inc., the American entity that was incorrectly named as the respondent in the application. The appeal panel found that the Deputy President's decision contained appealable error in several respects, and that these errors warranted the granting of permission to appeal. The Deputy President had mischaracterised the nature of the amendment application by disregarding the full description of the respondent in the original application. The description in the application contained the correct ABN/ACN of HDR Pty Limited, the Australian company, as well as its trading name. The amendment application only sought to align the respondent's name with the ABN/ACN already given. The Deputy President also erred in concluding that there was no error in the description of the respondent in the original application. The application contained a mistake in the description of the respondent which required correction, regardless of the source of or motive for the mistake. The amendment would have served to ensure that the dispute which actually existed was the subject of conciliation in accordance with the substantive purpose of the legislation. The Deputy President also failed to take into account whether any prejudice would result to either HDR Inc. or HDR Pty Limited by the grant of the amendment. There could be no prejudice to HDR Inc. since the amendment would have removed any possibility that it was involved in the proceeding. HDR Pty Limited was at all relevant times perfectly aware that its dismissal of Ms Sinden had given rise to a dispute with her and that Ms Sinden had commenced proceedings in the Commission in respect of that dispute. The interests of justice ran entirely in favour of the grant of the amendment application. The appeal is upheld, and the Decision is quashed. The application in matter C2018/1915 is amended to substitute "HDR Pty Limited" for "HDR Inc." as the name of the respondent, and the contact details of the respondent are altered to remove the name and details for Mr Bill Manhart and replace them with the name and details of Mills Oakley Lawyers. Ms Sinden is directed to file a minute of the amended application within seven days. The matter will then be referred to Commissioner McKenna to deal with in accordance with s 368 of the FW Act.

Orders