Lili Sinden v HDR Inc.
[2018] FWCFB 6934
•21 NOVEMBER 2018
| [2018] FWCFB 6934 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Lili Sinden
v
HDR Inc.; HDR Pty Limited
(C2018/5395)
VICE PRESIDENT HATCHER | 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”, with an address at “c/o”110 Walker Street, North Sydney. The application attached the dismissal letter of 29 March 2018. It also attached a detailed document headed “Reasons for Dismissal” which in its heading identified the “Respondent” as “HDR Inc.” and stated in its opening sentence: “The Applicant, Ms Lili Sinden, was an employee of the Respondent, HDR Inc…”.
(6) In response to Ms Sinden’s application, a Form F8A – Conditional Appearance and Response to purported general protections application was filed on 20 April 2018 by “HDR Inc (An entity incorporated in the United States of America)”. The legal representative for HDR Inc. was identified in the response as Mills Oakley Lawyers. The response relevantly stated that:
“HDR Inc does not have any presence in Australia and it does not submit to the jurisdiction of the Fair Work Commission (FWC). HDR Inc enters a conditional appearance and response for the limited purpose of informing the FWC that it did not ever employ the Applicant as alleged (or at all) either in the United States of America (or in Australia) and that HDR Inc is not subject to the jurisdiction of the FWC.”
(7) On 23 April 2018 Ms Sinden filed an application to amend her s 365 application to correct the description of her former employer. The amendment application noted that while the name given for the respondent was incorrect, its trading name, ABN and contact details were correct.
(8) A conciliation conference was conducted in relation to Ms Sinden’s s 365 application on 30 May 2018. HDR Pty Limited did not participate in the conference, but HDR Inc. did so on a conditional basis.
(9) On 6 June 2018 Mills Oakley Lawyers, acting for HDR Pty Limited, sent a letter to the Deputy President’s Associate advising that it opposed Ms Sinden’s amendment application. In this correspondence it was contended, among other things, that Ms Sinden had deliberately rather than erroneously named HDR Inc. as the respondent.
(10) On 15 June 2018 Mills Oakley Lawyers wrote to Ms Sinden’s legal representative (Pendlebury Workplace Law) advising that “Both HDR Inc and HDR Pty Ltd have indicated to the FWC that they will strenuously oppose your client’s Application to Amend”. The correspondence also advised that HDR Inc. would seek recovery of its costs against Ms Sinden and/or Pendlebury Workplace Law in respect of the amendment application.
[3] The amendment application was the subject of a telephone directions hearing before the Deputy President on 13 June 2018, at which Ms Sinden and HDR Inc. appeared. The Deputy President directed that Ms Sinden file her submissions and evidence by 4 July 2018, that HDR Inc. file its evidence and submissions by 25 July 2018, and that any submission in reply be filed by 13 August 2018. The amendment application was listed for hearing on 20 August 2018.
[4] Pursuant to these directions, Ms Sinden filed (in addition to a submission) a witness statement made by herself in which, relevantly, she stated that:
● she had made an error in the instructions she gave to her legal representative concerning the legal name of the respondent for her s 365 application;
● HDR Pty Limited was a related body corporate to HDR Inc. and part of the HDR Inc. group of companies;
● the documentation concerning her employment and termination repeatedly referred to her employer simply as “HDR”, which caused her to make the error;
● she did not have access to her employment letter identifying the employer when she gave her instructions to her legal representative; and
● in a discussion with Mr Manhart (who was located in the United States) on 27 March 2018, Mr Manhart requested that Ms Sinden send to him any communication to HDR concerning her termination.
[5] HDR Inc. filed a submission pursuant to the directions in which it contended, among other things, that Ms Sinden did not make a genuine mistake in naming HDR Inc. as the respondent, but rather made a “calculated, strategic decision to name HDR Inc. as the respondent in an attempt to bypass Mr Stephen Auld’s involvement in managing the application and in doing so, increase her chances of a favourable outcome”, and that as the most senior HR employee within her company it could not be accepted that she misunderstood the identity of her employer. Accompanying this submission were witness statements made by Mr Manhart and Mr Auld. Mr Manhart, who described himself as the Chief Human Resources Officer for HDR Inc. said in his statement, among other things, that:
● Mr Auld had informed him of the intention to dismiss Ms Sinden before this occurred; and
● in a post-dismissal discussion with Ms Sinden in which she informed him that she intended to “lodged some kind of complaint/initiate legal action” he told her that she could “write to me as a contact person”, with his intention being “to then pass any correspondence on to the appropriate person(s) at HDR Pty Ltd in Australia to manage the matter”.
[6] The parties subsequently advised the chambers of the Deputy President that they agreed that the hearing date listed for 20 August 2018 should be vacated and that the matter should be decided on the papers. The Deputy President acceded to this request.
The Decision
[7] The Deputy President’s reasoning in the Decision commenced with a consideration of the Commission’s power to correct or amend an application under s 586(a) of the FW Act. The Deputy President referred to a number of decisions in which the s 586(a) power had been exercised, and characterised them as generally involving “… circumstances where there was confusion as to who the actual employer was …”. 3 He also referred to the Full Bench decision in Djula v Centurion Transport Company Pty Ltd4as authority for the principle that each application to amend the name of a respondent “needs to be determined having regard to the particular facts of the matter”.5 The Deputy President then referred to a number of documents connected with Ms Sinden’s employment which provided details of the identity of her employer. The Deputy President then reasoned as follows (footnotes omitted):
“[26] In her submissions Ms Sinden highlighted that she correctly identified HDR Pty Limited’s ABN and business address in her general protections application. However, she did not indicate where those details were drawn from. An examination of the documents attached to Ms Sinden’s witness statement indicates that there are only two documents which included those details. They are the termination letter of 29 March 2018 and a copy of the transfer of employment letter referred to above which was attached to a letter sent by the Respondent’s representative to the Commission on 27 April 2018 (i.e. after Ms Sinden had lodged her general protections application and her application to amend).
[27] Drawing on the material referred to above, in circumstances where:
● Ms Sinden was, as HDR Pty Limited’s Human Resources Manager, the contact person for employees at the time of their employment transfer from Rice Daubney to HDR Pty Limited;
● the footer at the bottom of the termination letter refers to HDR Pty Limited, its ABN and its trading name;
● Ms Sinden was legally represented from at least 27 March 2018; and
● Ms Sinden contacted Mr Manhart to discuss her dismissal on or about 27 March 2018
[28] I consider it implausible that she made an error in identifying HDR Inc. as the Respondent. Beyond referring to the letterhead used for the termination letter, Ms Sinden produced no material which pointed to any confusion as to the identity of her employer. Having regard to contact details set out in the footer on the letterhead used for the termination letter (see paragraph [24] above) I am not satisfied that the letterhead was the cause of Ms Sinden’s error. Against that background, I am not prepared to exercise my discretion to amend Ms Sinden’s general protections application to name HDR Pty Ltd as the respondent.”
[8] The Deputy President noted that it was open to Ms Sinden to lodge a s 365 application against HDR Pty Limited, although it would be outside the statutory 21-day timeframe for lodging such applications and Ms Sinden would need to satisfy the Commission that there were exceptional circumstances warranting the Commission allowing her a further period to make such an application. 6 The Deputy President also determined to issue a certificate under s 368 of the FW Act (Certificate). The Certificate states:
“An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Lili Sinden alleging she was dismissed by HDR Inc. T/A HDR in contravention of Part 3-1 of the Act.
The Fair Work Commission conducted a conference to deal with the dispute on 30 May 2018.
Pursuant to s.368 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.”
Submissions
[9] Ms Sinden submitted that:
● in reaching the conclusion that he did in paragraph [28] of the Decision, the Deputy President approached the issue by asking a wrong question, namely whether the mistake was induced by the employer or whether there was a rational explanation for the mistake;
● s 586 and its predecessors had been applied to allow amendments in a wide variety of circumstances, and the Deputy President took an impermissibly narrow approach to the discretion;
● the Deputy President rejected Ms Sinden’s unchallenged evidence that she made a mistake in the identification of the respondent, and his finding that this evidence was “implausible” amounted to a finding, which was not reasonably available in the circumstances, that she had deliberately failed to tell the truth;
● the Deputy President implicitly inferred, without foundation, that Ms Sinden had some motive for deliberately misstating the legal name of the employer;
● there was no suggestion that anyone misunderstood the true identity of the employer, nor was there any evidence of any prejudice that would be suffered by HDR Pty Limited should the amendment be allowed in circumstances where it was fully aware of and participated in the proceedings;
● the Deputy President did not address the fact that Ms Sinden had correctly identified the trading name and ABN/ACN of her former employer in her s 365 application; and
● based on the errors identified, permission to appeal should be granted, the appeal upheld, and the amendment to Ms Sinden’s s 365 application allowed.
[10] HDR Inc. submitted that:
● the amendment sought by Ms Sinden below was to the change the employer from one legal entity outside the jurisdiction to another legal identity inside the jurisdiction;
● the amendment power in s 586 is discretionary in nature, and it was open to the Deputy President to assess the competing materials and conclude that Ms Sinden did not make a mistake when naming HDR Inc. as the respondent;
● no matter of public interest arose in the appeal to justify the grant of permission to appeal;
● the Deputy President asked the correct question, namely whether Ms Sinden made a mistake in instructing her legal representative;
● there was no probative evidence that HDR Pty Limited’s use of the abbreviation “HDR” caused her to make the alleged error;
● in circumstances where Ms Sinden had the opportunity to reply to HDR Inc.’s materials, and the matter was decided by consent on the papers, there could be no legitimate complaint that she was denied fairness or the opportunity to deal with criticism of her position;
● the proposition that HDR Pty Limited had participated in the proceedings was wrong, since it did not appear or participate in the conciliation or any other part of the proceedings;
● Ms Sinden required an order to proceed against a different entity than the one she named, since even though other details of the employing entity were included in the s 365 application, she chose to commence against the American entity, so that no question of any technical defect arose; and
● no error in the exercise of the discretion had been demonstrated, and accordingly the appeal had to be dismissed.
Consideration
[11] Section 586(a) of the FW Act provides that the Commission may “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”. The discretionary power conferred by s 586(a) is self-evidently broad, and encompasses but is not expressed as confined to the correction of mistakes. In respect of the amendment power in a previous iteration of the federal legislative scheme for industrial relations, the High Court treated it as having a wide field of operation so as to give effect to the statutory intention that proceedings should be directed to the merits and that technicalities and legal forms should not be regarded. 7 The same approach is applicable under the FW Act having regard to the requirements in s 577(b) for the Commission to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities and in s 578(b) for the Commission in performing functions and exercising powers in relation to a matter to take into account equity, good conscience and the merits of the matter. In the context of the Commission’s unfair dismissal jurisdiction, the s 586(a) power has been used to correct the identification of a respondent employer to the extent of substituting one corporate entity for another.8
[12] Because, as stated, s 586(a) is a discretionary power, an appeal from a decision to exercise, or to refuse to exercise, the power must involve the demonstration of error in the decision-making process at first instance. 9 In this appeal, we are satisfied that the Decision is attended by appealable error in a number of respects.
[13] First, consistent with submissions of HDR Inc. at first instance and on appeal, the Deputy President evidently proceeded on the premise that Ms Sinden’s amendment application sought to substitute as respondent HDR Pty Limited, an Australian corporation, for HDR Inc., an American corporation. That approach disregarded the full description of the respondent in Ms Sinden’s s 365 application as filed. We have earlier set out that full description: it included the full and correct ABN/ACN of HDR Pty Limited, the Australian company, as well as the trading name it used in Australia. The defect was that the name of the respondent company did not contain the correct suffix for an Australian proprietary company. The Deputy President did not take into account the ABN/ACN or the trading name, but simply assumed that the name of the entity given necessarily identified it as the American corporation. There was no proper basis to take this approach, particularly given that in Australia the nine-digit ACN is the unique identifier of a company regardless of what its name may happen to be at any given time (and is incorporated as the last nine digits of the eleven-digit ABN which is similarly a unique identifying number for taxation and other business interaction purposes). Accordingly the Deputy President erroneously mischaracterised the nature of the amendment application, which in truth only sought to align the respondent’s name with the ABN/ACN already given.
[14] Second, it was not reasonably open for the Deputy President to conclude that the description of the respondent in the s 365 application was not the subject of an error. Because it gave the correct ABN/ACN of HDR Pty Limited, but did not give a name which matched this number (but rather a name that was the same as that of the American corporation), the application self-evidently contained a mistake in its description of the respondent which required correction. It was not necessary for the Deputy President to inquire as to the source of or motive for the mistake in order to conclude that there was a mistake. It may be accepted that the mistake was egregious having regard to the seniority of Ms Sinden’s former position within HDR Pty Limited and the fact that she had the benefit of legal representation, but that did not alter its character as a mistake. The inference sought to be drawn by HDR Inc. (and which, arguably, was impliedly drawn by the Deputy President) that Ms Sinden deliberately selected it as the target of her litigation rather than the Australian company which had employed her cannot stand in the face of the following facts:
(1) Ms Sinden included the ABN/ACN of the Australian company in her description of the respondent in her s 365 application. She would not have done this if the American company was the intended target.
(2) The annexure to the s 365 application, as earlier stated, expressly referred to Ms Sinden as having been an employee of the respondent, indicating a clear intention by her to proceed against her former employer. This is significant because where a litigant correctly describes the person against whom they intend to proceed by reference to their fundamental characteristic in the context of the litigation (such as by describing the person as the employer) but makes a mistake in naming the person, that is taken to be an error capable of correction rather than an indication of a deliberate intention to proceed against the named respondent. 10
(3) Within three days of HDR Inc. filing its conditional response to the s 365 application, Ms Sinden filed her amendment application to make clear that the respondent was intended to be the Australian and not the American company. That is inexplicable if Ms Sinden had decided to proceed against the American company.
[15] The inclusion of Mr Manhart’s name and details for the respondent’s contact details in the s 365 application does not support the inference sought to be drawn by HRC Inc., since Mr Manhart’s own witness statement said that he requested that Ms Sinden make him the contact person for the purpose of dealings in relation to the dispute, and that he said he would pass on any correspondence to the appropriate persons at HDR Pty Limited to deal with.
[16] Third, it is clear that the purpose of an application made pursuant to s 365 is for conciliation to occur in relation to a dispute between a dismissed employee and his or her former employer involving an allegation of a contravention of Pt 3-1 before court proceedings are instituted. There was no contest between the parties that HDR Pty Limited, and not HDR Inc., was Ms Sinden’s former employer. The grant of the amendment sought would therefore have served to ensure that the dispute which actually existed was the subject of conciliation in accordance with the substantive purpose of the legislation and thereby avoid an approach to the legislative scheme which treated it as “a regime providing potential technical defects or traps that would deny a person’s access to justice”. 11 In rejecting the amendment, we consider that the Deputy President failed to have regard to the requirements of ss 577(b) and 578(b) of the FW Act and, with respect, prioritised legal forms and technicalities over equity, good conscience and the merits of the matter.
[17] Fourth, the Deputy President failed to take into account whether any prejudice would result to either HDR Inc. or HDR Pty Limited by the grant of the amendment. It is patently clear on the facts of the matter which we have recited above that the amendment would cause no prejudice to either. 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 conditional response filed in the name of HDR Inc. has all the flavour of a “too clever by half” legal tactic rather than genuinely being the product of doubt about the identity of the named respondent. The amendment application was made only four weeks after the dismissal occurred, so there could be no suggestion that the misnaming of the respondent had caused any prejudice to HDR Pty Limited’s capacity to respond to the application. In short, the interests of justice ran entirely in favour of the grant of the amendment application.
[18] We have considered Ms Sinden’s submission that the Deputy President also erred in rejecting the evidence in her witness statement to the effect that the misdescription of the respondent was simply a mistake, in circumstances where she was not the subject of any cross-examination in which that evidence could be challenged. That submission suffers from the difficulty that Ms Sinden consented to her amendment application being dealt with on the papers even though it must have been clear that HDR Inc. was contesting the veracity of her evidence in that respect. Because we have already found appealable error on four other bases, it is not necessary for us to deal with this submission. However the submission does illustrate the problems that may arise when a matter involving a significant factual contest is dealt with on the papers at the request of the parties.
[19] For the reasons given, we consider that the Decision was attended by appealable error in the four respects identified above. We consider that those errors are of a nature to justify the grant of permission to appeal. The appeal is upheld, and the Decision (including the decision to issue the Certificate, which identified HDR Inc. as the respondent to the dispute) is quashed.
[20] In exercise of our powers on appeal under s 607(3)(b) of the FW Act, we determine that the s 365 application should be amended to substitute “HDR Pty Limited” for “HDR Inc.” as the name of the respondent. We also consider that the contact details of the respondent should be altered to remove the name and details for Mr 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. Pursuant to s 607(3)(c), the matter will then be referred to Commissioner McKenna to deal with in accordance with s 368.
Orders
[21] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWC 5643) and the Certificate are quashed.
(4) The application in matter C2018/1915 is amended to:
(a) substitute “HDR Pty Limited” for “HDR Inc.” as the name of the respondent; and
(b) substitute, in respect of the contact details of the respondent, the name and contact details of Mills Oakley Lawyers for those of Mr Bill Manhart.
(5) Ms Sinden shall file a minute of the amended application within seven days of the date of this decision.
(6) Matter C2018/1915 is referred to Commissioner McKenna to deal with in accordance with s 368 of the FW Act.
VICE PRESIDENT
Appearances:
B. Miles of Counsel on behalf of Lili Sinden.
M. Easton of Counsel on behalf of HDR Pty Limited.
Hearing details:
2018.
Sydney:
13 November 2018.
1 [2018] FWC 5643
2 Although it does not appear to be the current holder of that registered business name in Australia.
3 Decision at [20]
4 [2015] FWCFB 2371
5 Decision at [22]
6 Decision at [31]
7 Re Coldham; Ex parte BLF (1985) 159 CLR 522 at 528-529
8 Djula v Centurion Transport Company Pty Ltd[2015] FWCFB 2371
9 Ibid at [8]
10 Bridge Shipping Pty Limited v Grand Shipping S.A. (1991) 173 CLR 231 at 261-262 per McHugh J, with whom Brennan and Deane JJ agreed.
11 Rutherford v Hausner [2011] FMCA 1033, 212 IR 343 at [18]-[22]; followed in Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [36]-[38]
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