Mr Dylan Ireland v The Woodworkers Company

[2017] FWC 6180

[2017] FWC 6180

FAIR WORK COMMISSION

DECISION

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

Mr Dylan Ireland
v
The Woodworkers Company
(U2017/9768)

DEPUTY PRESIDENT DEAN SYDNEY, 23 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 8 September 2017, Mr Dylan Ireland made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Ireland’s application states that he commenced employment with The Woodworkers Company (the respondent) in October 2015 and that his dismissal took effect on 21 August 2017.

[3] On 3 October 2017, the respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy. The respondent stated in its Form F3 that the correct legal name of the respondent is WWC Pty Ltd.

[4] The respondent further advised the Fair Work Commission (the Commission) on 4 October 2017 and 6 October 2017 that the correct name of the respondent’s legal entity is WWC Pty Ltd.

[5] On 6 October 2017, the Commission contacted Mr Ireland and asked if he agreed to amend the respondent’s name from The Woodworkers Company to WWC Pty Ltd. However, Mr Ireland advised that he did not agree to this amendment as he believed the respondent’s name to be The Woodworkers Company.

[6] Directions were issued in this matter on 6 October 2017 and required Mr Ireland to file in the Commission and serve on the respondent an outline of argument, statement of evidence and a document list by no later than Monday, 30 October 2017. Mr Ireland did not comply with this direction and the matter was therefore listed for a Non-Compliance Hearing before Deputy President Gooley on 3 November 2017.

[7] On 31 October 2017, the respondent filed a Form F4 Objection to Unfair Dismissal Application and raised a jurisdictional objection that Mr Ireland was not an employee. The respondent stated that the entity The Woodworkers Company Pty Ltd has never employed an employee by the name of Mr Dylan Ireland and therefore requested for the current application to be dismissed.

[8] At the Non-Compliance Hearing on 3 November 2017, Deputy President Gooley advised the parties that the respondent’s jurisdictional objection that Mr Ireland was not an employee of The Woodworkers Company would need to be dealt with before the merits of the application. Mr Ireland was also advised by the Deputy President that he could make an application to change the name of the respondent.

[9] Consequently, the directions were vacated and the matter was allocated to my Chambers to determine the respondent’s jurisdictional objection.

[10] The matter was listed for teleconference before me on 15 November 2017. At the teleconference, Mr Ireland appeared on his own behalf and Mr Lawrence Richards appeared on behalf of the respondent.

[11] During the teleconference it was noted that Mr Ireland had been advised on numerous occasions that his application for unfair dismissal remedy had been made against an entity who was not his employer. Mr Ireland was directed to file an application to amend the name of the respondent within seven days of the teleconference, otherwise his application would be dismissed.

[12] Following the teleconference my Chambers sent the following email to Mr Ireland:

“Dear Mr Ireland

Further to the telephone conference in this matter today, please find attached a form F1.

The Deputy President notes that you have been advised on numerous occasions that your application has been made against an entity who was not your employer.

If you wish to proceed with your unfair dismissal application, you are required to make an application to amend the name of the respondent.

You are directed to complete and return this form within 7 days.

If you do not complete and return this form, without good reason, by no later than 4pm on Wednesday, 22 November 2017, the Deputy President will dismiss your application for unfair dismissal remedy without any further notice to you.”

[13] No further correspondence was received from Mr Ireland.

[14] Section 587 of the Act is in the following terms:

“587 Dismissing applications

(1) Without limiting when FWC may dismiss an application, FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[15] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[16] The Commission’s Unfair Dismissal Benchbook, at page 138, states:

“Who is the employer?

An application for unfair dismissal must name the employer against who the claim is being made. That employer must be a national system employer. If an application is made against an entity that is not the employer, the application can be dismissed.

…

What if you get it wrong?

Section 586 of the Fair Work Act provides a power for the Commission to correct or amend an application, or waive an irregularity in the form or manner in which an application is made.

An applicant can apply to the Commission to amend an application if they have made a mistake on the form such as misspelling the name or not providing the full name of the employer. In certain circumstances, this power may also be used to substitute the name of the employer.”

[17] Mr Ireland was given the opportunity to amend the name of the respondent and he did not do so. Further, Mr Ireland failed to comply with a direction of the Commission to complete a Form F1 application to amend the name of the respondent if he wished to proceed with his unfair dismissal application.

[18] No such application has been made.

[19] In all the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[20] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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