Sean Doohan v Korr Electrical Pty Ltd

[2016] FWC 2557

[2016] FWC 2557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sean Doohan
v
Korr Electrical Pty Ltd
(C2015/3119)

DEPUTY PRESIDENT KOVACIC CANBERRA, 21 APRIL 2016

Application to deal with contraventions involving dismissal – request to amend application – application amended to added Sphere 38 Group Pty Ltd as a respondent – request to add other respondents refused.

[1] This decision concerns an application made on 7 August 2015 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – Queensland Divisional Branch (CEPU) on behalf of Mr Sean Doohan (the Applicant) requesting that the Fair Work Commission (the Commission) exercise the discretion available to it under s.586 of the Fair Work Act 2009 (the Act) to amend Mr Doohan’s general protections application (the original application) to add several respondents. The original application, made on 19 June 2015, cited Korr Electrical Pty Ltd (Korr) as the Respondent.

[2] For the reasons set out below, I consider it appropriate to amend the original application to add Sphere 38 Group Pty Ltd as a respondent. However, I do not consider it appropriate to amend the original application to add either Mr Greg Johnston or Mrs Maria Johnston as respondents.

Background

[3] On 19 June 2015 the CEPU on behalf of Mr Doohan made an application under s.365 of the Act alleging that his dismissal on 2 June 2015 by Korr was in contravention of the general protections provisions of the Act. Mr Doohan commenced his employment with the Respondent on 23 March 2015.

[4] In its Form F8A – Response to general protections application, Korr refuted that Mr Doohan was employed by it, contending that Mr Doohan was hired by Sphere (BNE).

[5] The original application was the subject of conference convened by one of the Commission’s Conciliators on 1 July 2015, with the conference unsuccessful in resolving the dispute.

[6] On 20 July 2015 the CEPU made an initial application to amend Mr Doohan’s original application by adding Sphere (BNE) as a respondent.

[7] Mr Doohan’s original application was the subject of a further conference before the Commission as currently constituted on 29 July 2015. A proposed settlement was put to Mr Doohan by Korr after that conference but ultimately was not accepted by Mr Doohan.

[8] In subsequent developments, on 7 August 2015 the CEPU lodged an application to further amend Mr Doohan’s original application. The application to further amend sought to add Sphere 38 Group Pty Ltd (Sphere), Mr Greg Johnston, the sole Director of Korr, and Mrs Maria Johnston, the sole Director of Sphere, as respondents to the original application.

[9] The CEPU’s application to further amend Mr Doohan’s original application was the subject of a telephone hearing on 3 September 2015. At the telephone hearing, Ms Kerry Inglis of the CEPU appeared for Mr Doohan, while Mr Johnston appeared for Korr. Further Directions were issued following that telephone hearing for the parties to file any additional material/submissions regarding the CEPU’s application to further amend the original application, with the last material received by the Commission provided by the CEPU on 9 October 2015.

The statutory framework

[10] By way of background, s.586(a) of the Act provides that:

“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”

The Applicant’s case

[11] Mr Doohan submitted that the application to further amend his original application was made because of the uncertainty as to the actual respondent, adding that he would be prejudiced if his application were not amended as there was a possibility that Korr may be deregistered by the Australian Securities and Investments Commission (ASIC).

[12] Mr Doohan contended that there were several indications that Korr was the employer. These included that he attended an interview with Korr prior to commencing his employment with the Respondent, an email with starting instructions was sent to him from the domain name @korrelectrical.com.au, he completed an induction sheet headed Korr Electrical, he completed Korr timesheets, and all but one of his pays were banked as from Korr Electrical. Mr Doohan also contended that Sphere does not hold an electrical contractor’s licence which means it cannot employ electrical workers by virtue of s.56 of the Electrical Safe Act 2002 (Qld).

[13] Mr Doohan acknowledged in his submissions that there were several documents which pointed to Sphere being the employer. Those documents being the employment contract sent to him after he had commenced work with the Respondent which cited Sphere (BNE) as the employer, several payslips showing Sphere as the employer and the employer’s Form F8A which states that Mr Doohan was employed by Sphere (BNE).

[14] Mr Doohan also submitted that Sphere was not registered by ASIC until a week after he commenced his employment.

The Respondent’s case

[15] Sphere contended that Mr Doohan was employed by it for the duration of his employment, pointing to the employment contract which was provided to him at the commencement of his employment, the pay slips issued to him by Sphere and his Group Certificate which was also issued by Sphere to support its contention. Sphere also submitted that it has always been responsible for Mr Doohan’s employment and not Mr Johnston or Mrs Johnston personally. Sphere disputed that Korr was likely to be deregistered by ASIC.

[16] At the telephone hearing, Mr Johnston indicated that he would not object to Sphere being added as a respondent, adding that he maintained his objection to Korr being cited as a respondent.

Consideration of the issues

[17] As can be seen from above, s.586(a) of the Act provides the Commission with a broad discretion to correct or amend an application “on any terms that it considers appropriate”.

[18] A close examination of the material before the Commission indicates that:

• the email sent to Mr Doohan by Mr Johnston on 21 March 2015 regarding “Start Info” was sent from Mr Johnston’s Korr Electrical email address 1;

the employment contract provided to Mr Doohan stated “I am pleased to offer you employment with Sphere (BNE) …” 2;

the payslip provided by Mr Doohan for the pay period 27 April to 3 May 2015 was headed Sphere (BNE) 3;

the Employee Induction Sheet completed by Mr Doohan on 24 March 2015 was on Korr Electrical letterhead 4;

the timesheet completed by Mr Doohan for the week ending 3 May 2015 was headed “Korr Electrical Electrical Contractors and Engineers” 5;

the payroll advice regarding Mr Doohan for the period 1 March to 30 June 2015 is headed “Sphere 38 Group Pty Ltd” 6;

the Group Certificate issued to Mr Doohan on 11 August 2015 cites as the Payer “Sphere 38 Group Pty Ltd” 7; and

an ASIC extract dated 5 August 2015 regarding Sphere 38 Group Pty Ltd states that the business was registered on 31 March 2015 8, which is eight days after Mr Doohan commenced employment with the Respondent.

[19] In short, the material before the Commission is unclear as to the identity of Mr Doohan’s employer, though the employment contract provided to Mr Doohan points to Sphere being his employer. However, the situation is further complicated by the fact that Mr Doohan commenced employment with the Respondent on 23 March 2015, yet Sphere was note registered by ASIC until 31 March 2015. This begs the question who was Mr Doohan’s employer for the period 23 to 31 March 2015? Further, while Mr Johnston and Mrs Johnston are the sole Directors of Korr and Sphere respectively, there is no material before the Commission which points to either of them being Mr Doohan’s employer.

[20] Against that background, I consider it appropriate to amend the original application to add Sphere 38 Group Pty Ltd as a respondent. While I note Mr Johnston’s objection to Korr being cited as a respondent, in view of the uncertainty as to the identity of Mr Doohan’s employer, I consider it appropriate that Korr continue to be cited as a respondent. I do not consider it appropriate to amend the original application to add either Mr Johnston or Mrs Johnston as respondents.

Conclusion

[21] For the reasons outlined above, I consider it appropriate to amend the original application to add Sphere 38 Group Pty Ltd as a respondent but decline to add either Mr Johnston or Mrs Johnston as respondents. An order to that effect will be issued with this decision.

[22] In terms of the next step, given that the application has been the subject of two conciliation conferences aimed at resolving the dispute, one before one of the Commission’s Conciliators and the other before the Commission as currently constituted, I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. A certificate will therefore be separately issued in accordance with s.368(3) of the Act.

DEPUTY PRESIDENT

Appearances:

K. Inglis for the Applicant.

G. Johnston for the Respondent.

Hearing details:

2015.

Canberra and Brisbane (telephone hearing):

September 3.

 1   Application to further amend at Attachment SD 3

 2   Ibid at Attachment SD 7

 3   Ibid at Attachment SD 6

 4   Ibid at Attachment SD 4

 5   Ibid at Attachment SD 5

 6   Respondent’s submissions of 11 September 2015 at Schedule B

 7   Ibid at Schedule C

 8   Application to further amend at Attachment SD 9

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