Matthew Cumming v The Trustee for Huynh Nguyen Family Trust, Kelly Nguyen T/A the Bread Corner, Phuong Nguyen
[2023] FWC 2529
•11 OCTOBER 2023
| [2023] FWC 2529 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Matthew Cumming
v
The Trustee for Huynh Nguyen Family Trust, Kelly Nguyen T/A The Bread Corner, Phuong Nguyen
(C2023/2807)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 OCTOBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – second respondent not an employer of the Applicant – not dismissed – jurisdictional objection upheld – application amended.
On 15 May 2023, Mr Matthew Cumming (the Applicant) lodged an application with the Fair Work Commission (the Commission) claiming that adverse action was taken against him under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Trustee for Huynh Nguyen Family Trust (First Respondent) lodged a jurisdictional objection that Ms Kelly Ngyuen T/A The Bread Corner (Second Respondent) was not the Applicant’s employer and therefore should not be included in the adverse action claim. There is no objection to Mr Phuong Nguyen (Third Respondent) remaining on the application.
Directions were issued on 14 August 2023 for submissions regarding whether the Second Respondent was the Applicant’s employer.
The Applicant submitted that the First and Second Respondents are associated entities under the definition of s.50AAA of the Corporations Act 2001 (Cth) and s.12 of the Act and therefore both should remain as Respondents to the claim. The Applicant submitted that the operations, resources and affairs of ‘The Bread Corer Carina’, ‘The Bread Corner Carindale’ and ‘Wello Point Bakery’ are, and were on 25 April 2023, controlled by the Second Respondent.
The Second Respondent submitted that she is a sole trader registered under an Australian Business Number (ABN). She stated that she (as a sole trader) had no direct affiliation with the First Respondent and had assisted the First Respondent by providing administration tasks, payroll and banking in her capacity as trustee. The Second Respondent states that she had no contact with the Applicant during his employment, no decision-making capacity in respect of his employment and no participation in business management matters, including the dismissal of the Applicant.
The Applicant’s payslip states he is receiving payment from ‘The Bread Corner Carina’ from ‘Kelly Ngyuen ATF The Huynh Nguyen Family Trust’. The number of the ABN starts in 17 and ends with 05.
Upon reviewing the history of the ABN starting in 17 and ending in 05, it states the entity name is ‘The Trustee for Huynh Nguyen Family Trust.’ It does not mention Mrs Ngyuen by name. Mrs Ngyuen had a separate ABN starting in 36 ending in 57 which was her sole trader ABN. Mrs Ngyuen had registered ‘The Bread Corner’ under her sole trader entity name. This was also registered with ASIC.
A witness statement from Minh Duc Huynh of H & N Lawyers, engaged by Mr and Mrs Ngyuen to set up the First Respondent, confirmed that the ABN starting in 17 and ending in 05 belongs to the First Respondent. Mrs Ngyuen as a sole trader is only being the registered owner of the business name under which the First Respondent’s business trades. Mrs Ngyuen is also the trustee of the First Respondent. The Respondents submitted that Mrs Ngyuen on behalf of the First Respondent, purchased the business and that it is owned by the trust, the First Respondent only. The Respondent submitted that the business name owned by Mrs Ngyuen does not have a legal entity and therefore does not and cannot own the bakery business, despite the business using the registered business name as the trading name.
Mrs Ngyuen is responsible for the Applicant’s payroll through her role as trustee for the First Respondent. However, the dismissal of the Applicant was undertaken by Mr Peter Ngyuen (Mr Phuong Nguyen or Third Respondent) acting as an agent of the First Respondent. Mr Ngyuen terminated the Applicant’s employment on 23 April 2023.
Consideration
In order for the Second Respondent to be named under s.365 of the Act, she must have been the employer of the Applicant under s.386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
(emphasis added)
The Fair Work Act broadly defines a National System Employer under s.14 of the Act:
(f)a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
(emphasis added)
The Applicant’s application primarily deals with Mr Ngyuen, who stated that “Kelly will sort out your final pay” while all operational business interactions that the Applicant was involved in went through Mr Nguyen. The Applicant submitted that the Second Respondent had control of the other entities involving the family trust (the First Respondent) but has not provided sufficient evidence for me to be satisfied that the Second Respondent had control of the other entities.
The evidence is that Mrs Ngyuen operated a business under her ABN and the same trading name of “The Bread Corner” between 2016 and 2019, until she de-registered the business name. Her witness statement contends that after the purchase of the business by the First Respondent in 2019, she re-registered the business name under her sole trader ABN in 2020, under which the First Respondent trades. There is no evidence that the Applicant was ever employed by the Second Respondent under her ABN, or that the Second Respondent has continued to trade under her ABN in addition to her duties as trustee of the First Respondent.
As such, I turn to considering amending the application pursuant to s.586(a) of the Act as sought by the Respondents to remove the Second Respondent as an employing party.
Section 586 of the Act sets out:
“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.”
In Sinden v HDR Inc. T/A HDR & HDR Pty Ltd[1] a Full Bench of the Commission considered the amending of an application as follows:
“…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.[2]”[3]
(Emphasis added)
The Full Bench also set out the following considerations to be made when amending an application:
· Whether there is substitution of a party which would change the nature of the application
· Whether there was a mistake in the naming, whether intentional or not
· Whether an amendment would allow the correct parties to the application to be correctly named
· Whether any prejudice would be suffered by the grant of an amendment to the application
The Full Bench also went on to make comment about the purpose of such an application as that brought by the Applicant in this case:
“… 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”[4] ”[5]
(Emphasis added)
The Full Bench in Djula v Centurion Transport Company Pty Ltd[6] on appeal of a finding that an amendment should not be made to an application noted that:
“…Had the amendment sought been granted, it would not have had the affect of creating a new application. Certainly, it would have substituted the name of the respondent, Centurion, with CFC Consolidated, but the application would have remained the same.”[7]
Applying the above, I consider that the broad power granted by s.586(a) to amend the application should be exercised in this case. On the facts, the nature of the application remains unchanged as the employing entity of the Applicant, being the First Respondent, will remain a party to the application, the parties will now be more correctly named and the Applicant has not demonstrated that any prejudice will be suffered should the Second Respondent be removed.
Conclusion
Despite the interrelated parties and names in this matter, the legal entities are clear. Mr and Mrs Ngyuen set up the First Respondent with Mrs Ngyuen as trustee. The First Respondent, the trust, owns and operates a business using the trading name of “The Bread Corner” which is a business name registered to the Second Respondent as a sole trader.
The Second Respondent did not employ the Applicant, the First Respondent did, with Mrs Ngyuen undertaking the administrative duties as trustee and Mr Ngyuen operating the business. The ABN of the First Respondent appears on the Applicant’s payslips, with Mrs Ngyuen appearing in her capacity “as trustee for” or “ATF.”
As such, I find that application should be amended to remove the Second Respondent as a Respondent to this application. Mr and Mrs Ngyuen remain parties to the application by way of their roles as trustees and being the Third Respondent named therefore no prejudice will be suffered by the Applicant in not being able to address the administrator and operator of the business. The subject of the application, being a dispute regarding the Applicant’s dismissal remains unimpeded.
The jurisdictional objection is upheld, the application is to be amended, and the application will be listed for conference before me.
I Order accordingly.
DEPUTY PRESIDENT
[1] [2018] FWCFB 6934.
[2] Re Coldham; Ex parte BLF (1985) 159 CLR 522 at 528-529.
[3] [2018] FWCFB 6934 at [11].
[4] Rutherford v Hausner [2011] FMCA 1033,212 IR 343at [18]-[22]; followed in Knight v Visionstream Australia Pty Ltd [2017] FCA 1513at [36]-[38]
[5] [2018] FWCFB 6934 at [16].
[6] [2015] FWCFB 2371.
[7] [2015] FWCFB 2371 at [28].
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