Minas Trialonas v 3D Scaffolding Pty Ltd - [2017] FWC 3138

[2017] FWC 3138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Minas Trialonas

3D Scaffolding Pty Ltd

(U2016/15558)

COMMISSIONER JOHNS

SYDNEY, 23 JUNE 2017

Application for relief of unfair dismissal – identity of employer – power to amend the name of the respondent.

Introduction

On 23 December 2016 Mr Minas Trialonas (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by his employer, which he identified as “3D Scaffolding”.
On 13 January 2017 a Form F3 – Employer Response to Unfair Dismissal Application (Form F3) was filed by Steric Solutions Pty Ltd (Steric Solutions). Steric Solutions filed the Form F3, rather than an entity identified as “3D Scaffolding”, because Steric Solutions asserted that, at all relevant times, it was the employer of Mr Trialonas.
3D Scaffolding Pty Ltd also says the proper employer was, at all relevant times, Steric Solutions.
Notwithstanding, Mr Trialonas maintained that 3D Scaffolding Pty Ltd and not Steric Solutions was his employer. Consequently, the reference to “3D Scaffolding” in the F2 Unfair Dismissal Application was taken to mean a reference to 3D Scaffolding Pty Ltd (3D Scaffolding).
As a preliminary issue it was necessary to determine the identity of Mr Trialonas’ employer. The matter was listed for hearing on 5 May 2017.

Permission to be represented

The applicant sought permission to be represented. A determination of whether to grant the applicant permission to be represented was necessary to ensure that the manner in which any hearing was conducted was fair and just.[1]
Section 596 of the FW Act provides as follows:
“Representation by lawyers and paid agents
(1)    Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2)    The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a)    it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)    it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)    it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”
The applicant opposed the respondent being represented.
The identity of the proper employer of Mr Trialonas necessitated an examination of a complex web of interrelated companies. Consequently, having considered the factual matters to be considered the Commission, as presently constituted, determined that allowing the applicant to be represented by a lawyer would enable the…

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: [2017] FWC 3138
Decision Date: 23 JUNE 2017

CaseChat Overview and Summary

Minas Trialonas brought an application for relief from an unfair dismissal against 3D Scaffolding Pty Ltd. The primary dispute was whether the applicant was an employee of the respondent company and, if so, whether the dismissal was unfair. The case was heard in the Fair Work Commission. The legal issues before the Commission were whether the applicant was an employee of the respondent and whether the Commission had the authority to amend the name of the respondent in the proceedings. The Commission examined the evidence and arguments presented by both parties to determine the applicant's employment status and the fairness of the dismissal.

The Commission found that the applicant was indeed an employee of the respondent, despite the respondent's argument to the contrary. The Commission considered the nature of the working relationship, the control exercised by the respondent, and the terms of the contract between the parties. The evidence showed that the applicant was subject to the respondent's direction and control, and that the respondent had the power to terminate the applicant's employment. Regarding the power to amend the name of the respondent, the Commission held that it had the discretion to amend the name of the respondent in the proceedings if it would assist in the fair and efficient resolution of the matter. The Commission decided to amend the name of the respondent to include the full legal name of the company, as this would aid in the identification of the parties and avoid any confusion.

The Fair Work Commission granted the applicant's application for relief from unfair dismissal and ordered that the respondent compensate the applicant for the unfair dismissal. The Commission also made an order that the name of the respondent be amended in the proceedings to include the full legal name of the company. The Commission emphasised the importance of accurately identifying the parties in employment disputes and ensuring that the proceedings are conducted fairly and efficiently.

Orders