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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Lochlin Byrne applied to the Fair Work Commission for relief from an unfair dismissal against LEDified Lighting Corporation Pty Ltd. Byrne sought to amend his application to substitute Save Wise Pty Ltd as the respondent, alleging that Save Wise was the real party of interest. The Commission considered whether to exercise its discretion to allow the amendment, given the implications for the proceedings and the rights of the original respondent. In exercising its discretion, the Commission found that the amendment would not cause substantial injustice to the original respondent and was in the interests of justice.

The primary issue before the Commission was whether to permit the substitution of the respondent in Byrne's unfair dismissal remedy application. This involved assessing whether Save Wise Pty Ltd was indeed the real party of interest and if permitting the amendment would unfairly prejudice LEDified Lighting Corporation Pty Ltd. The Commission also needed to consider the timeliness of the application for amendment and whether there were any valid reasons for the delay in seeking the substitution. Ultimately, the decision hinged on balancing the interests of justice against the potential prejudice to the original respondent.

In reaching its decision, the Commission examined the evidence presented by Byrne regarding the identity of the real party of interest. The Commission noted that the amendment sought was not frivolous and that there was a reasonable basis to believe that Save Wise Pty Ltd was the entity responsible for Byrne's dismissal. It also considered the potential for prejudice to LEDified Lighting Corporation Pty Ltd, finding that it was not substantial enough to warrant denying the amendment. Given these factors, the Commission exercised its discretion to allow the amendment, concluding that it was in the interests of justice to do so.

Accordingly, the Fair Work Commission granted Byrne's application to amend his unfair dismissal remedy application, substituting Save Wise Pty Ltd as the respondent. The Commission's decision was based on the finding that the amendment would not cause substantial injustice to LEDified Lighting Corporation Pty Ltd and was necessary to achieve a just outcome. The proceedings would now continue with Save Wise Pty Ltd as the respondent.

Mr Lochlin Byrne v LEDified Lighting Corporation Pty Ltd

REASONS FOR DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established