Mr Rodney Hall v BIS Industries

[2020] FWC 1220

[2020] FWC 1220

FAIR WORK COMMISSION

DECISION

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

Mr Rodney Hall
v
BIS Industries
(U2019/4609)

DEPUTY PRESIDENT ASBURY BRISBANE, 6 MARCH 2020

Application for an unfair dismissal remedy - Finding that application has no reasonable prospect of success - Application dismissed pursuant to s. 587 of the Act.

[1] Mr Rodney Hall (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his alleged dismissal by BIS Industries Limited (the Respondent). The application was filed in the Commission on 24 April 2019.

[2] In its Form F3 Employer Response Form, the Respondent raised a jurisdictional objection to the application asserting that it did not employ the Applicant and that he was employed by ExtraStaff, a supplier of labour resources to a number of businesses including the Respondent which placed him temporarily with the Respondent. The Respondent also asserts that it is not a related entity of ExtraStaff and there is no contractual relationship between the Applicant and the Respondent.

[3] The matter was listed for telephone conciliation on 31 May 2019 before a Fair Work Commission Conciliator. The Respondent declined to participate in a conciliation and sought that its jurisdictional objection be dealt with in the first instance. The conciliation did not proceed on that basis and the application was allocated to me.

[4] Correspondence was sent from my Chambers on 29 May 2019 by email to the address notified by the Applicant in his Form F2 Application, advising that the matter had been allocated to me and that a conference would be listed at 1.00 pm on 4 June 2019 to discuss the Respondent’s jurisdictional objection that it did not employ the Applicant. The Applicant responded that day stating that as Bis Industries had left him $10 000 worse off with their fabrications of the truth, he was now in new employment and could not afford to take time off. However, the Applicant also confirmed he was available on his mobile telephone number.

[5] On 3 June 2019 my Associate sent email correspondence to the Applicant requesting he confirm whether he could attend the conference the following day or whether he sought an adjournment. The Applicant responded by stating “Sorry working all day. I am available on my mobile.”

[6] My Associate sent further email correspondence on 4 June 2019 stating that the Applicant’s email was taken to mean that he sought an adjournment of the conference listed later that day, and requesting the Respondent indicate whether it objected to an adjournment. The Respondent confirmed it did not object to an adjournment.

[7] I then caused correspondence to be sent to the Applicant stating that the adjournment was granted and that a conference would be relisted on 7 June 2019. The correspondence again noted the Respondent’s jurisdictional objection that it did not employ the Applicant, and also referred to the Employment Separation Certificate appended to the Applicant’s Form F2 Application stated that “ExtraStaff” was the Applicant’s employer and not the Respondent. It was also stated that it appeared Bis Industries was not the Applicant’s employer and that if this was the case the application had been made against the wrong entity.

[8] At the conference on 7 June 2019, the Applicant maintained that Bis Industries was his employer. The Applicant was given until 4.00pm on Wednesday 12 June 2019 to provide any additional evidence he had to support his assertion that Bis Industries was his employer, and not ExtraStaff. On 12 June 2019, Mr Hall sent email correspondence to my chambers stating that he would be continuing with this claim, and that his main issue was finding time to meet with his lawyer, and provided a name and email contact for his lawyer. The Applicant did not file any evidence to support his assertion that Bis Industries was his employer.

[9] Ms Kathryn Winter, Employee Relations Manager for the Respondent, sent correspondence in response to the Applicant stating that he had not provided any evidence as directed by the Commission, and stating that in the absence of any evidence to the contrary, the Respondent relied on its Form F3 Employer Response and maintained the application should be dismissed on the basis the Applicant was not employed by Bis Industries, but was employed by ExtraStaff. My Associate sent correspondence to the parties advising that I was out of chambers and was unable to consider the correspondence received from parties.

[10] On 25 July 2019. I caused my Associate to send correspondence to the Applicant. The correspondence stated that the Applicant had been afforded an opportunity to provide additional evidence to support his assertion that Bis Industries was his employer and had failed to do so, and that the Applicant had only responded to state he was continuing with his claim and was attempting to meet with his lawyer. The Applicant was given until 4.00pm on 1 August 2019 to confirm that he wished to proceed with his unfair dismissal application against Bis Industries and to provide any additional evidence to demonstrate Bis Industries was his employer, and not ExtraStaff which was stated on his employment separation certificate as the Applicant’s employer. The Applicant was also advised that while he has provided the Commission with an email address for his lawyer, that if the Applicant had engaged this lawyer to act on his behalf that his lawyer would need to file a Form F53 notice of representative commencing to act.

[11] The correspondence stated that if no response was received by 4.00pm on Thursday 1 August 2019 the application may be dismissed without further notice. No correspondence was received from the Applicant.

[12] I consider it appropriate to dismiss the application pursuant to s.587 of the Fair Work Act 2009. I do so on the basis that that I consider the application has no reasonable prospects of success on the basis that the Applicant’s unfair dismissal application has been made against the wrong entity. This is supported by the Applicant’s own Employment Separation Certificate states that ExtraStaff was his employer. The Applicant has been afforded an opportunity to place evidence before me to support his assertion that he was in fact employed by Bis Industries and not ExtraStaff, and has not availed himself of that opportunity. The Applicant was informed that it appeared his unfair dismissal application had been made against the wrong entity. Further, the Applicant was informed that if he did not respond to the correspondence giving him a further opportunity to indicate that he wished to pursue his application against Bis Industries and to place additional evidence before me by the required time, his unfair dismissal application may be dismissed without further notice.

[13] Accordingly, I dismiss the Applicant’s unfair dismissal pursuant to s. 587 of the Act. An Order to that effect is to issue.

DEPUTY PRESIDENT

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