Mr Graeme Mcdonough v Trading Metals Pty Ltd

[2021] FWC 3132

[2021] FWC 3132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Graeme Mcdonough
v
Trading Metals Pty Ltd
(U2021/4060)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 31 MAY 2021

Application for an unfair dismissal remedy - leave to amend date dismissal took effect – permission granted for representation – application referred for conciliation

[1] By application dated 11 May 2021 Graeme Mcdonough (Mr Mcdonough or the applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Trading Metals Pty Ltd (Trading Metals or the respondent).

[2] The application is opposed by Trading Metals.

[3] This decision concerns three interlocutory matters:

•  whether leave should be granted to amend the application to substitute a different date on which the dismissal took effect;

•  if leave is not given, whether an extension of time to file the application should be granted; and

•  whether the applicant and the respondent should be granted permission to be represented in the matter.

Facts

[4] The facts concerning these interlocutory matters are not in dispute. They are drawn primarily from witness statements by Mr Mcdonough and his representative (Mr Gaffney), and the Commission records.

[5] Mr Mcdonough commenced working for Trading Metals in 2010.

[6] After being dismissed in April 2021, he engaged the services of a paid agent, Mr Gaffney of Unfair Dismissal Experts Pty Ltd (UDE).

[7] An application on his behalf was filed on 11 May 2021.

[8] The originating application states that Mr Mcdonough was notified of his dismissal on 4 April 2020 and that the dismissal took effect that day.

[9] On its face, the application was received outside the statutory 21-day time limit for filing unfair dismissal claims.

[10] On 13 May 2021 the Commission issued directions requiring Mr Mcdonough to file materials in support of an extension of time, and setting the matter down for an extension of time hearing.

[11] By email that dame day (13 May 2021), the applicant’s representative, lodged an amended application and advised that an “administrative error regarding the termination date was made, and this an amended F2 with the correct termination date of 20 April 2021”.

[12] On 20 May 2021 the applicant’s representative sent an email to the Commission stating that “I understand that a directions hearing was scheduled for this matter. I already tried to rectify this issue, and submitted an amended F2 on 13 May (see email below and attached F2).”

[13] Further correspondence was exchanged between the Commission and the applicant’s representative on 20 May 2021. The parties were advised that as an amendment to the application was being sought, this would be dealt with in conjunction with the extension of time issue. Dates for filing materials were extended.

[14] On 25 May 2021, Trading Metals lodged a response to the application. It stated that the dismissal was notified and took effect on 20 April 2021.

[15] On 25 and 27 May 2021 materials were filed by Mr Mcdonough and by Trading Metals. I then determined to deal with these interlocutory issues on the papers.

Consideration

Leave to amend

[16] Section 586 of the FW Act relevantly provides:

“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.”

[17] The Commission has power under section 586 of the FW Act to amend the application. A Full Bench in Sinden v HDR Inc.; HDR Pty Limited 1 has observed:

“[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. 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.” (citations omitted)

[18] It is appropriate to amend the application in the manner sought.

[19] The evidence of Mr Mcdonough and the employer’s F3 make it clear that the date dismissal was notified and the date it took effect was 20 April 2021. That, it would appear, is the true date of dismissal.

[20] The evidence of Mr Gaffney and Mr Mcdonough establish that a simple clerical error in the offices of UDE caused 4 April 2021 to be incorrectly recorded in the originating application as the date of dismissal.

[21] Clerical errors are sometimes made in the course of taking instructions and filing proceedings. No-one is perfect. Whilst this error triggered the prospect of the application being lodged out of time, there is a reasonable explanation for the incorrect date: human representative error.

[22] It would be unfair to Mr Mcdonough not to amend the application. The Commission’s process would be burdened by an extension of time determination. This would add inefficiency to a jurisdiction intended to operate quickly, flexibly and informally. 2

[23] There is no prejudice to the employer, given that the amended application will reflect the true date of its dismissal.

[24] I do not consider it appropriate to take into account the employer’s assertion that Mr Mcdonough’s case on merit is weak. At this early stage of proceedings, neither Mr Mcdonough or the employer have had the benefit of guidance from a conciliator or seen the considered evidence and arguments of the other side. More particularly, I have received no evidence as yet on merit. It would be wholly inappropriate to form even an initial view on that subject.

[25] The order I will make will correct associated errors in the originating application and the amended F2. The dismissal took effect in 2021, not 2020. The amended F2 has not corrected this error. An amendment will also be made to item 3.2 paragraph 1 of the F2.

Extension of time

[26] As leave will be granted to amend the application, the application as amended will have been filed within 21 days of the dismissal taking effect. No issue of extension of time arises or requires determination.

Representation

[27] Having considered the submissions of the parties, I am satisfied that should the matter require determination, it is appropriate that the parties be represented in the interests of efficiency. The application (as amended) and the employer’s response, together with accompanying materials, suggest that the case will involve considerable evidence as to conduct and performance and the testing of evidence. Proceedings will likely be more efficient with experienced representatives able to navigate the evidence. It is undesirable for witnesses to also be advocates in evidence-rich matters.

[28] As neither party opposes the other being represented, and as both seek representation, issues of unfairness do not arise.

[29] Section 596(2)(a) is made out.

[30] Should it become apparent during proceedings that representation is not contributing to the efficiency of the matter, the powers of the Commission to rescind or vary this decision will be reserved.

Conclusion

[31] An order will be issued under section 586(a) of the FW Act substituting “20 April 2021” for “4 April 2020” in items 1.3, 1.4 and 3.2 paragraph 1 of application U2021/4060 dated 11 May 2021.

[32] An order will be issued under section 596 of the FW Act granting Mr Mcdonough and Trading Metals permission to be represented in matter U2021/4060.

[33] A direction is issued remitting the matter to the Commission’s conciliation unit for conciliation by a staff conciliator. If necessary, the matter will then proceed in the orthodox manner.

[34] An Order 3 giving effect to this decision will be made in conjunction with its publication.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730334>

 1   [2018] FWCFB 6934

 2 Section 381(1)(b) FW Act

 3   PR730335