Nicole Wells v Linx Employment Tas Pty Ltd

[2018] FWC 3301

[2018] FWC 3301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Wells
v
Linx Employment Tas Pty Ltd
(U2018/5344)

COMMISSIONER BISSETT MELBOURNE, 6 JUNE 2018

Application for an unfair dismissal remedy – Application to amend Respondent’s name.

[1] On 23 May 2018, Miss Nicole Wells made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application Miss Wells said that her employment had been terminated by Driscolls Australia on 9 May 2018.

[3] In the Form F3 – Employer Response to Unfair Dismissal Application (Form F3) filed on 29 May 2018, Driscolls Australia raised a jurisdictional objection to Miss Wells’ application that Miss Wells was not an employee of Driscolls Australia. It said that Miss Wells was employed by a labour hire provider who was contracted to supply Driscolls with temporary labour to fulfil seasonal production requirements. Driscolls Australia advised that Miss Wells was employed by ‘Linx Employment Tas Pty Ltd’ who was responsible for her dismissal. On the same day, Miss Wells sent email correspondence to the Commission with regard to Driscolls Australia’s objection:

“…I have supporting evidence that i was infact working on Driscolls Farm for the said amount of time (15 months). Although Driscolls may not have been my "direct" employer they still paid a third party to pay me as i worked on their farm for that period, so the matters in question still fall back onto Driscolls. Driscolls gave me the impression that work would be on going and continuous as they willingly supported me to obtain my first aid certificate and my Chemical certificate. Also during my time on Driscolls Farm i was acting as a team supervisor.” [sic]

[4] In response to Miss Wells’ email correspondence, the Commission telephoned her and provided her with the telephone numbers for Community Legal Centres, so that she could seek legal advice as to the correct employer for her application.

[5] On 30 May 2018, Miss Wells advised the Commission that she had sought legal advice and could confirm that her employer was ‘Linx Employment’. She requested the Commission contact her by telephone to advise how she is “able to fix this”. On the same day, the Commission contacted Miss Wells by telephone to advise that she may file a Form F1 - Application (No Specific Form Provided) (Form F1) to request that the Commission amend the name of the respondent. Later that day, Miss Wells filed her Form F1.

[6] In her Form F1, Miss Wells submits the order or relief sought to be:

“1. Disgard Driscolls Australia off application U2018/5344

2. Add Linx employment as Employer to application U2018/5344

3. Justifying the dismissal

4. Investigate into over time that i have not been paid under the nursery award 2010.” [sic]

[7] Further, Miss Wells sets out the following grounds for the order or relief sought:

“1. Seeked Legal Advise

2. Made error on application regarding employers

3. wish to make changes as above

4. Lodging this form

5. Investigate under payment of wages from Linx Employment” [sic]

[8] On 5 June 2018, the Commission sent email correspondence to Miss Wells to advise that her request to amend the name of the respondent was being considered by the Panel Head. The correspondence requested that Miss Wells provide a copy of a payslip from Linx Employment to assist in determining her request. On the same day, Miss Wells provided two payslips that confirmed her employer to be ‘Linx Employment Tas Pty Ltd’.

[9] On the basis of the material before me, I conclude that Miss Wells, as an unrepresented applicant, made an error on her application in naming the employer and upon seeking legal advice now, seeks to rectify this error. I am satisfied, by the information provided in the Form F3 and the payslips Miss Wells has provided, that ‘Linx Employment Tas Pty Ltd’ was Miss Wells’ employer. Therefore, I grant Miss Wells’ request to amend the name of the respondent in her unfair dismissal matter. Driscolls Australia will be removed from the application and Linx Employment Tas Pty Ltd will be named as the respondent. An order giving effect to this will be issued today.

[10]
With regard to the relief sought by Miss Wells at three, “Justifying the dismissal”, it is unclear what Miss Wells is seeking from the Commission. Further, with regard to four “Investigate into over time that i have not been paid under the nursery award 2010”, I note that the Commission does not have jurisdiction to investigate underpayment claims. Accordingly, I am unable to grant the relief sought at items three and four referred to at [6] above.

COMMISSIONER

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