Rezuanul Hoque v Ocn Pty Ltd T/A Ocn Services

[2020] FWC 2314

[2020] FWC 2314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rezuanul Hoque
v
OCN Pty Ltd T/A OCN Services
(U2020/1649)

COMMISSIONER MCKENNA SYDNEY, 15 MAY 2020

Application for an unfair dismissal remedy.

[1] Rezuanul Hoque (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy. The Form F2 application in such respects identified OCN Pty Ltd trading as OCN Services (“OCN”) as the former employer of the applicant.

[2] In a Notice of Listing issued on 19 February 2020, advice was given that the matter was listed for conciliation, by telephone, before a Commission conciliator on 17 March 2020. In accordance with the internal processes of the Fair Work Commission, a copy of the Form F2 application form was served by the Commission on OCN together with the standard associated correspondence. Part of that correspondence from the Commission referred to the requirement that OCN provide its Form F3 – Employer response to unfair dismissal application. In its Form F3, dated 19 February 2020, OCN provided a number of answers to questions. Among other responses, OCN’s Form F3 contained the following text:

“Has the Applicant given the correct legal name of the employer in their unfair dismissal application (Form F2)?

[ ] Yes

[X] No- AS OCN IS NOT THE APPLICANTS [sic] EMPLOYER.

…

1.2 What date did the Applicant begin working for the employer?

Applicant has never been an employee of OCN Pty Ltd

1.3 What date did the employer notify the Applicant of their dismissal?

The applicant has never been an employee of OCN Pty Ltd

1.4 What date did the dismissal take effect?

Not applicable

1.5 What was the Applicant’s wage or salary at the time of the dismissal?

As applicant was never an employee we cannot comment.

…

3.1 What were the reasons for the dismissal?

The applicant has never been an employee of OCN Pty Ltd.

3.2 What is the employer’s response to the Applicant’s contentions?

Cannot comment.” (Bold in original)

[3] In its Form F3, OCN also identified in response to questions 2.1 and 2.2 that it had a jurisdictional objection to the application – namely that “The Applicant was not an employee”.

[4] Apart from what was to be said to me in submissions by the parties when the matter was subsequently allocated to me, it is unclear and disputed as to what unfolded in the telephone conciliation conducted by a staff conciliator on 17 March 2020. The file record, however, indicates that following the staff conciliation a number of emailed exchanges variously occurred involving the staff conciliator and the parties. Among those emailed communications, OCN provided to the conciliator and copied to the applicant’s solicitor (Mr K Bolwell of WorkLawyers) a statutory declaration of Mr Theodoros Getsios, Managing Director of Pella Services Pty Ltd (“Pella”). That statutory declaration relevantly indicated that “… Pella Services is an independent Company with its own ACN and ABN and is not associated with OCN Services [sic] Pty Ltd.”

[5] In emailed correspondence from the staff conciliator to the applicant’s solicitor and OCN, the parties were informed that, as the matter had not been resolved, the application was being referred for arbitration.

[6] The matter was then referred to Catanzariti VP. On 7 April 2020, correspondence issued from the Vice President concerning the objection made by OCN that it had not been the employer of the applicant. That correspondence read in part:

“OCN Pty Ltd (the respondent) objects to your application because it says you were not its employee. It appears from material that the employer has provided after its initial response (Form F3) that it says that Pella Services Pty Ltd was your employer.

If you believe that you were employed by OCN Pty Ltd directly, please provide a submission outlining the reasons why you consider this to be the case. You may consider attaching evidence to demonstrate that it was your employer.

If you would like to request to amend your application to name a different entity as your former employer, please provide the full name, address and contact details of that other entity as soon as possible.”

[7] On 14 April 2020, the applicant’s solicitor filed and served a “preliminary statement and 18 attachments”. Relevantly, a culmination of the preliminary statement of the applicant was set out at paragraph 18 as follows:

“18. For all of these reasons I believe I was an employee of OCN and I was unfairly dismissed without warning by my employer.”

[8] That same day, 14 April 2020, Fred Itaoui – Managing Director of OCN, sent to the chambers of the Vice President correspondence which read in part:

“OCN maintains that Mr Hoque is an employee of Pellla services [sic] who has a Contractor Service Agreement to supply services for OCN which includes a site supervisor at Four Seasons [Hotel] site for OCN as well as other services.

Please note copies of texts and communications provided in email trail [comprising the applicant’s preliminary statement and 18 annexures] are operational in nature and do not proof [sic] that at any stage Mr Hoque was an employee.

I am not sure what else do we have to do and state other than that Mr Hoque is not an employee of OCN Pty Ltd, we do not deduct PAYG on his behalf, we do not pay super on his behalf, we provided a Statutory declaration from his employee [sic], the Director of Pella Services who is not related to OCN Pty Ltd nor is he a director of OCN Pty Ltd.

Why don’t they want to submit a claim against his employee [sic] Pella Services, they are wasting time and resources as well as money,

OCN Pty Ltd reserves its rights.”

[9] On 15 April 2020, the parties were informed that the matter had been reallocated to me to “determine whether the named employer was the applicant’s employer”.

[10] I listed the matter for a pre-hearing conference and/or directions proceeding. In that proceeding on 22 April 2020, the appearances were Mr Bolwell and his applicant client; and, for OCN, Mr Itaoui. While various matters were canvassed in the pre-hearing conference and/or directions proceeding, relevantly, Mr Bolwell advised that he needed about 24 hours to seek instructions from his client. In this regard, for example, Mr Itaoui had submitted that OCN was a cleaning company, and Pella was a labour hire company and the employer of the applicant. As such, the matter was listed for the following day, 23 April 2020, for a further conference and/or directions proceeding.

[11] In the proceeding on 23 April 2020, Mr Bolwell submitted that, based on legal research, the applicant had decided it was appropriate to proceed against OCN; Mr Itaoui maintained in his submissions that OCN had never been the employer of the applicant. With a view to attempting to “short circuit” matters, I enquired, against the background of Pella already having provided the statutory declaration of Mr Getsios, whether Mr Itaoui might be able to obtain any further documentation from Pella indicating that Pella had been the employer of the applicant. Mr Itaoui indicated that the statutory declaration had been provided specifically in response to a contention, apparently that arose in the earlier staff conciliation, that OCN was a “shelf company” of Pella. Mr Itaoui further indicated in the proceedings on 23 April 2020 that he expected he could obtain further documentation from Pella as to its employment of the applicant.

[12] Under cover of an email dated 27 April 2020, Mr Itaoui filed and served a document on Pella Services Pty Ltd letterhead paper, which included certain contact details as a footer. The (unsigned) document read:

“To Whom It May Concern

This letter is confirmation Mr. Rezuanul Hoque was employed by Pella Services from 1^st of February 2019 to 26^th of January 2020.

If you have any further queries regarding any of the above please feel free to contact me on the below details.

Regards

Theo Getsios”

[13] Upon the resumption of proceedings on 30 April 2020, the following matters relevantly unfolded in the submissions:

•  Mr Bolwell confirmed that (unlike the version provided to the Commission) he was in receipt of a signed copy of the document under the signed name of Pella’s Mr Getsios confirming that the applicant had been employed by Pella;

•  Mr Bolwell advised that his client wished to withdraw/not press the unfair dismissal application so far as OCN was concerned - and sought that OCN be, however described, released from further involvement in the proceedings in relation to U2020/1649;

•  Mr Bolwell submitted that it would be appropriate for the Commission to accede to an application, made pursuant to s.586 of the Act, to amend the name of the respondent from OCN Pty Ltd T/A OCN Services to Pella Services Pty Ltd. In so submitting, Mr Bolwell referred to, and relied upon, Djula v Centurion Transport Co. Pty Ltd[2015] FWCFB 2371.

[14] In consequence of the submissions, I decided in the proceedings on 30 April 2020 to formally release OCN from further involvement in the proceedings. As no notice had been given of the s.586 application, I informed Mr Bolwell that I would need to give further consideration to the application to amend the name of the respondent to Pella Services Pty Ltd. In a further proceeding on 4 May 2020, Mr Bolwell made short submissions effectively reiterating matters that had been raised in relation to the amendment application on 30 April 2020 and referring also to matters including questions of potential prejudice to the applicant and/or Pella depending on the outcome of the amendment application.

[15] True it is that I decided on 30 April 2020, on the application of the applicant, to release OCN from further participation in the proceedings in this matter - but Pella itself has not been given the opportunity to be heard in relation to the application that it be substituted as the respondent employer in this matter. It is appropriate that Pella should be given the opportunity to be heard, as a self-evident matter of procedural fairness to Pella rather than solely on the basis of submissions for the applicant.

[16] Should the applicant wish to proceed with the application to substitute Pella as the respondent to the application in U2020/1649, I direct as follows:

1. By no later than 4.00pm on Friday 22 May 2020, the applicant is to file to my chambers email address ([email protected]) and simultaneously serve on Pella a Form F1 application as to the applicant’s application to substitute Pella as the respondent employer in U2020/1649. In addition to any other supporting materials, grounds and the like upon which the applicant may seek to rely in support of the amendment application, that Form F1 application shall include (for the documentary information of Pella):

•  a copy of the Form F2 filed by the applicant on 14 February 2020;

•  a copy of the Form F3 filed by OCN on 28 February 2020;

•  a copy of this decision.

2. Once the applicant has filed with the Commission and served on Pella a copy of the Form F1, including with identification at page 2 of the Form F1 of “the details of the person or business who will be responding to [the applicant’s] application to the Commission”, the matter will be relisted before me shortly thereafter, on a date to be fixed, for a conference and/or directions proceeding to consider what might be the appropriate further procedural step/s in relation to the matter of the applicant’s Form F1 amendment application.

[17] Alternatively, should the applicant no longer wish to proceed with the application to substitute Pella as the respondent to the application in U2020/1649, then, by no later than 4.00pm on Friday 22 May 2020, the applicant is to file to my chambers email address and serve on (both) OCN and Pella a Form F50 Notice of Discontinuance (for example, in favour of lodging a further application - albeit out of time - pursuant to s.394 of the Act, identifying Pella as the respondent and identifying why Pella is alleged to have unfairly dismissed the applicant).

[18] The matter is stood over pending either the filing and service of the Form F1 application or, alternatively, a Form F50 Notice of Discontinuance.

COMMISSIONER

Appearances:

K Bolwell, solicitor for the applicant.
F Itaoui, for OCN Pty Ltd T/A OCN Services.

Hearing details:

2020.
Sydney (by telephone):
April 22, 23, 30.
May 4.

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