Ngor Atem Kuir v Coles Group Supply Chain Pty Ltd
[2023] FWC 1384
•14 JUNE 2023
| [2023] FWC 1384 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ngor Atem Kuir
v
Coles Group Supply Chain Pty Ltd
(U2023/2308)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 14 JUNE 2023 |
Application for an unfair dismissal remedy
On 23 March 2023, Mr Ngor Atem Kuir (the Applicant) lodged an application for an unfair dismissal remedy having been dismissed. Coles Supermarkets Australia Pty Ltd (the Respondent) objected to the application on the basis that it was not the Applicant’s employer and, therefore, he could not have been dismissed by the Respondent. The Respondent submits that the Applicant was employed and subsequently dismissed by Coles Group Supply Chain Pty Ltd (Coles Supply).
Whilst the matter proceeded to conference, the issue was unable to be resolved between the parties, and the Applicant pressed for the matter to be heard. Leading up to the hearing, the Applicant maintained his contention that the Respondent employed him, and then at hearing, the Applicant argued he was employed by both the Respondent and Coles Supply.
The confusion in this case appears to have arisen primarily from the letter of offer (Employment Contract) that was provided to the Applicant in or around 31 January 2017. The Employment Contract stated:
Dear Ngor
I am pleased to offer you employment with Coles Group Limited (CGL, the Company) from 6 February 2017.
Position
When engaged at our Kewdale Distribution Centre, your position duties and rate of pay will be in accordance with the Kewdale Distribution Centre WA Agreement 2014. This Agreement or subsequent workplace agreement and relevant legislation govern your employment. While the Agreement forms part of the laws governing your employment, the terms of the Agreement are not terms of your contract of employment.On commencement, you will be employed as a Part-time Team Member in Training. Your position may be varied in accordance with the Kewdale Distribution Centre WA Agreement 2014, or its successor.[1]
The Respondent submitted that the Applicant accepted the Employment Contract and neither the Respondent nor its associated entities entered into any subsequent contract(s) of employment with the Applicant.[2]
The Respondent further submitted that the reference to ‘Coles Group Limited’ as the employer in the Employment Contract was an inadvertent error, and that the correct name of the employer in the Employment Contract ought to have been documented as Coles Supply.
It is observed that the Employment Contract expressly stated that the [Coles] Kewdale Distribution Centre WA Agreement 2014 (Agreement)[3] and any subsequent agreement governed the Applicant’s employment with the employer. The only employer that is party to the Agreement is Coles Supply,[4] and the position is based at the Coles Kewdale Distribution Centre, which is operated by Coles Supply.[5]
Subsequent iterations of the Agreement, namely the Coles Kewdale Distribution Centre WA Agreement 2017[6] and the Coles Kewdale Distribution Centre WA Agreement 2020,[7] provide that the only employer that is party to those agreements is Coles Supply.
It appears uncontroversial that the Applicant’s payslips specify the name of the Applicant’s employer as Coles Supply. That is the payment for the work performed by the Applicant pursuant to the Employment Contract, was made by Coles Supply.
In support of the Applicant’s assertion that the Respondent employed him, the Applicant relies upon the reference to the Respondent which appears in the footer of the following documents:
a)a letter from Mr Michael D’Antonio (Team Manager at Coles Supply’s Kewdale Distribution Centre) to the Applicant dated 28 July 2022 entitled ‘Medical Assessment and Capacity for Work’ (Medical Assessment Letter);[8] and
b)a letter from Mr D’Antonio to the Applicant dated 2 February 2023, in which Mr D’Antonio informed the Applicant that ‘Kewdale DC’ had decided to terminate the Applicant’s employment effective from 2 March 2023 (Termination Letter).[9]
The Respondent submits that the Applicant’s reliance on the reference to the Respondent in the footer of the Medical Assessment Letter and the Termination Letter to propound the Applicant’s argument that he was employed by the Respondent is misplaced. It says that in neither letter does the writer make any reference to the Respondent in the substantive contents of each respective letter.
In the Medical Assessment Letter, Mr D’Antonio refers to ‘Kewdale DC’ (Kewdale Distribution Centre) as the decision maker. This is the same in respect of the Termination Letter, which sets out:
…Kewdale DC (‘the Company’) considers that there is no reasonable prospect of you resuming your pre-injury position in the near future. In addition, there are no suitable positions available for you.
You will appreciate that we are not able to hold your position open indefinitely. I therefore regret to inform you that the Company has decided to terminate your employment…
The Respondent argues that given that Kewdale Distribution Centre is operated by Coles Supply, it follows that notwithstanding that the letters were prepared using letterheads that include a reference to the Respondent in the footer of each, neither letter substantively lends support to the Applicant’s argument that he was employed by the Respondent.
The Respondent’s correspondence to the Applicant is the source of all of this confusion. First, the Respondent informs the Applicant in his Employment Contract that he is employed by Coles Group Limited. However, within that same Employment Contract he is informed that he is covered by an enterprise agreement that does not actually cover the employing entity he has been employed by. Thereafter, it appears that the terms and conditions of his employment were, in part, set by the Agreement and its subsequent iterations – there being no argument to the contrary. Then he is informed in the Medical Assessment Letter of 28 July 2022 that a decision about his future employment may be made by ‘Kewdale DC’, and his Termination Letter refers to this same ‘company’, notwithstanding that ‘Kewdale DC’ is not a company, but rather the site at which the Applicant worked. The latter missives include reference to the Respondent in the footer of the letters, as identified by the parties. In short, it is unsurprising that the Applicant considers himself employed by the Respondent or employed by both the Respondent and Coles Supply, notwithstanding that joint employment is not accepted in this jurisdiction.
The Full Bench in Chambers v Broadway Homes Pty Ltd has elucidated the principles concerning the proper approach to be taken to identifying the parties to a contract.[10] I have considered the decision in Chambers and all the evidence before me. In doing so, I have arrived at the conclusion that Coles Supply was the Applicant’s employer.
In Sinden v HDR Inc. (Sinden), a Full Bench of this Commission considered the operation of s 586(a) of the Act, stating:
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. [11]
The appropriate course in light of the facts before me is to correct the identification of the respondent employer by replacing the Respondent with Coles Supply. In circumstances where the Applicant has genuinely attempted to identify the correct employer and has referred this Commission to cogent evidence in support of his contention that he was employed by the legal entity named in the Medical Assessment Letter and Termination Letter, it is difficult to conceive his application being defeated on the jurisdictional ground advanced. As observed in Sinden, the Commission must take into account equity, good conscience, and the merits of the matter,[12] in addition to performing its functions in a manner that is quick, informal and avoids unnecessary technicalities.[13]
I am satisfied that in allowing the correction to be made under s 586(a) of the Act, a new application is not created or otherwise established, and such correction does not fundamentally change the nature of the application. In this respect, the Respondent faces no prejudice. It is well established, as noted in Sinden, that the Commission can amend an application using the power in s 586 of the Act by changing the identity of the respondent to an application.
Pursuant to s 586(a) of the Act, the Applicant’s unfair dismissal application should be amended to substitute ‘Coles Supermarkets Australia Pty Ltd’ for ‘Coles Group Supply Chain Pty Ltd’ as the name of the respondent. An Order[14] issues concurrently to that effect. The parties are placed on notice that directions will issue shortly regarding the filing of materials in respect to the merits of the unfair dismissal application and remedy.
DEPUTY PRESIDENT
Appearances:
N Kuir, Applicant.
J Goyal, for the Respondent.
Hearing details:
2023.
Perth (by telephone):
7 June.
[1] Witness statement of Julie Elizabeth Gleeson, annexure JEG-2 (Gleeson Statement) Digital Hearing Book Part 2, 9 (DHB Part 2)
[2] Gleeson Statement (n 1) [8].
[3] AE409549.
[4] Ibid cl 2.1.
[5] Ibid cl 2.2.
[6] AE426792.
[7] AE507316.
[8] DHB Part 2 (n 1) 3.
[9] Ibid 2.
[10] (2022) 317 IR 205.
[11] [2018] FWCFB 6934, [11] (citations omitted) (emphasis in original).
[12] Fair Work Act 2009 (Cth) s 578(b).
[13] Ibid s 577(b).
[14] PR763030.
Printed by authority of the Commonwealth Government Printer
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