Mr Lochlin Byrne v LEDified Lighting Corporation Pty Ltd

[2016] FWC 3627

[2016] FWC 3627

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Lochlin Byrne
v
LEDified Lighting Corporation Pty Ltd
(U2016/5426)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 6 JUNE 2016

Application for relief from unfair dismissal; application to amend unfair dismissal remedy application to substitute Save Wise Pty Ltd as the Respondent to the application instead of LEDified Lighting Corporation Pty Ltd; discretion exercised; application amended.

[1] This is an edited version of my decision given ex tempore and recorded in transcript on 2 June 2016. An application has been made by Mr Lochlin Byrne (Applicant) that his unfair dismissal remedy application lodged with the Fair Work Commission (Commission) on 15 March 2016 be amended so as to substitute Save Wise Pty Ltd (Save Wise) as the respondent to that application instead of LEDified Lighting Corporation Pty Ltd (LEDified). Both Save Wise and LEDified do not oppose that course of action and, in the circumstances, I propose to exercise my discretion and consider that it is appropriate to make a correction order pursuant to s.586 of the Fair Work Act 2009 (Act) to substitute Save Wise as the respondent instead of LEDified.

[2] It is also not in contest and I am satisfied that in relation to the employment of the Applicant by Save Wise, the Applicant was, at the time of his dismissal, a person protected from unfair dismissal within the meaning of s.382 of the Act.  There is no dispute, putting to one side whether there was award or agreement coverage, that the Applicant's annual earnings did not exceed the high income threshold.

[3] It also does not appear to be now in contest that the Applicant was, at the time of his dismissal, a person who had completed the minimum period of employment to enable him to bring this application. That minimum period of employment arises as a consequence of a transfer of employment which occurred on or about 11 January 2016 or, alternatively, on or about 9 February 2016 between two associated entities, namely LEDified and Save Wise, with the consequence that the Applicant’s prior period of employment or service with LEDified is counted as part of his period of employment with Save Wise. It follows that the Applicant was employed for a period well beyond the minimum employment period set out in s.383 of the Act.

[4] Separately, LEDified has made an oral application for costs and the oral application will be confirmed by LEDified filing a short written application and serving it on the Applicant. Upon receipt of the application for costs, I will issue directions for the filing of materials. I note that the Applicant wishes to be heard in relation to the costs application and I will accommodate that in the directions.

[5] An order giving effect to my decision is issued separately in PR581246.

DEPUTY PRESIDENT

Appearances:

Ms K Burgess ofCounsel, for Lochlin Byrne.

Mr R Millar of Counsel, for the Save Wise Pty Ltd and LEDified Lighting Corporation Pty Ltd.

Hearing details:

2016.

2 June.

Melbourne.

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<Price code A, PR581216>