Robert Barsby v 7 Masters Pty Ltd

[2013] FWC 7092

[2013] FWC 7092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Barsby
v
7 Masters Pty Ltd
(U2013/12163)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 17 SEPTEMBER 2013

Application for relief from unfair dismissal - jurisdiction - respondency.

Background

[1] On 30 July 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Robert Barsby (the applicant).

[2] The applicant was, to his knowledge, employed from June 2008 until 27 July 2013 as a cleaner in the Myer Department store in Dubbo, New South Wales by a contract cleaning company named 7 Masters Pty Ltd.

[3] On 12 July 2013 the applicant received a letter of termination on the letter-head of YSW Group Pty Ltd, signed by Elijah Jun, Operational Manager.

[4] The applicant was dismissed for inadequate work performance, in that he had not achieved “the minimum satisfactory mark of 91%” and was given two week’s notice.

[5] The applicant alleges that he was unfairly dismissed and claims significant underpayment of wages, superannuation and lack of employment documentation, including payslips. He also says that he knows nothing of “YSW Group Pty Ltd” and thought he was employed by 7 Masters Pty Ltd.

[6] The matter was listed for a telephone conciliation on 11 September 2013. However, on 22 August, 7 Masters Pty Ltd lodged an objection to the matter being dealt with on the ground that it was not the employer.

[7] In an email to the Unfair Dismissal Team on 5 August 2013, Mr Ian Park, the Operations Manager, 7 Masters Pty Ltd stated that the applicant was employed “by our subcontractor”, YSW Group Pty Ltd.

[8] The matter was therefore listed before me on 16 September. The applicant appeared for himself by telephone. The respondent, 7 Masters Pty Ltd was represented by Mr Anthony Daher, its Quality Control Manager.

Considerations

[9] At the hearing, Mr Daher submitted that YSW Group Pty Ltd was the employer of the applicant and tendered a copy of the subcontractor’s agreement between 7 Masters Pty Ltd and YSW Group Pty Ltd.

[10] The evidence so far appears to indicate that the applicant was employed by and dismissed by YSW Group Pty Ltd. There is a financial relationship between 7 Masters Pty Ltd and YSW Group Pty Ltd. The level of operational control is yet to be established.

[11] It seems to me that the appropriate course of action, so that the applicant’s claim can be properly dealt with in accordance with the Act, is for YSW Group Pty Ltd to be added as a respondent so the likely correct legal entity as employer will be joined to the proceedings.

[12] Section 586 of the Act provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) 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; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[13] Section 586 provides a broad discretion to the Commission to correct proceedings and applications to ensure that the objects of the Act are carried out and that fairness is accorded to parties before the Commission. In this case, the applicant, it would appear through no fault of his own, has not identified the correct legal entity that employed him.

[14] Mr Daher did not object to this proposal when it was put to him at the hearing.

Decision

[15] Pursuant to s.586 of the Act, the employer, YSW Group Pty Ltd will be added as a respondent in matter U2013/12163.

[16] The matter will be listed before me for conciliation at 10.00 am on Monday 30 September 2013. A notice of listing and directions will issue with this decision.

DEPUTY PRESIDENT

Appearances:

R Barsby, Applicant on his own behalf

A. Daher, for the Respondent.

Hearing details:

2013

Sydney:

September 16.

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