Sergei Princip v Beta Publishing Pty Ltd t/a Vesti

[2019] FWC 4160

[2019] FWC 4160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sergei Princip
v
Beta Publishing Pty Ltd t/a Vesti
(C2018/3382)

COMMISSIONER CIRKOVIC MELBOURNE, 21 JUNE 2019

Application to deal with contraventions involving dismissal– Application to add Respondent.

[1] On 19 June 2018, Mr Sergei Princip made an application (the Original Application) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that he was dismissed on 31 May 2018 by Beta Publishing Pty Ltd t/a Vesti in contravention of the general protections provisions of the Act. Mr Princip named Beta Publishing Pty Ltd as the Respondent to the Original Application.

[2] The Respondent company is 100 per cent owned by a German company, Nidda Verlag GmbH (Nidda Verlag). 1 Until about November 2018, the Respondent distributed a Serbian language newspaper named “Vesti”, under a commercial arrangement wherein Nidda Verlag held the licence to publish Vesti and the Respondent held the rights to distribute the paper. In November 2018,2 Nidda Verlag sold the licence to publish Vesti to an unrelated company, BEO Media Pty Ltd. Nidda Verlag closed its Australian office around the same time,3 and since then, the Respondent has not engaged in any trading activity.4

[3] On 27 June 2018, the Respondent filed its F8A Employer Response, objecting to the Original Application on the grounds that Mr Princip was not an employee of the company.

[4] The matter was conciliated by the Commission on 10 August 2018 and failed to settle, however the parties continued settlement discussions. In the ordinary course, when matters of this kind fail to settle, the Commission issues a certificate under s.368, which enables the Applicant to pursue the matter further in the Federal Court of Australia.

[5] On 5 December 2018 Mr Princip filed a Form 1 seeking to add as second respondent Mr Ray Miller, sole director of Beta Publishing Pty Ltd. Pursuant to s.586(a), the Applicant seeks to add Mr Miller to the Original Application by amendment. Alternatively, the Applicant seeks to add Mr Miller by making a fresh s.365 application and pursuant to s.586(b) submits that the Commission should exercise its discretion to waive any irregularities in that application. Further pursuant to s.366 the Applicant submits that there are exceptional circumstances warranting the granting of an extension of time for the filing of the fresh application. The matter was allocated to my chambers for determination of the issue of adding Mr Miller as a respondent.

[6] A mention hearing was conducted on 25 February 2019, and directions were issued by my chambers on 26 February 2019. The directions were subject to a number of extensions due to the parties’ circumstances. The matter was heard on Thursday, 9 May 2019.

Submissions

[7] I have taken the parties’ submissions into account in determining this matter. 5

[8] The Applicant’s primary contention was that the Commission should amend the Original Application under s.586(a) because:

“a. The Act provides in section 550 for a person involved in a contravention to be found to have contravened that contravention (sic), and Mr Miller has a case to answer pursuant to section 550;

b. The Applicant is not seeking to fundamentally change the kind of application originally made; and

c. The Applicant will be subject to an injustice if Mr Miller is not named in the Original Application.” 6

[9] In support of submission c above, the Applicant submitted that “[t]he Applicant will be subject to an injustice if the Respondent ceases trading and the Applicant is unable to make a general protections court application because Mr Miller is not included in the certificate.” 7

[10] The Applicant alternatively submitted that, if the addition of Mr Miller is to be treated as a fresh application rather than an amendment, the Commission should exercise its discretion under s.586(b) to waive any irregularities in the making of that application. 8 During oral submission, the Applicant’s representative confirmed that the Applicant submitted there were exceptional circumstances warranting the extension of time under s.366 for the filing of the fresh application.9

[11] The Applicant submitted that Mr Princip only received information as to the sale of the Vesti rights “at the end of November, early December 2018.” 10

[12] The Respondent submitted four key arguments:

a. Mr Miller was not involved in any contravention within the meaning of s.550, as he simply carried out the instructions of the directors of Nidda Verlag, who were the relevant decision makers in relation to the Applicant’s allegations;

b. Section 586 (a) and (b) do not permit amending an application to add a respondent, and such instances should be treated as a fresh application against that additional respondent;

c. The Applicant should have listed Mr Miller as a second respondent at the time of filing;¹¹ and

d. Exceptional circumstances do not exist warranting the extension of time for filing the fresh application against Mr Miller.¹²

[13] In support of arguments b and c above, the Respondent submitted that, at the time of filing, the Applicant was aware of the probability that the Vesti rights would be sold, and therefore, either the Applicant should have instructed his representatives the Media, Entertainment and Arts (MEAA) to name Mr Miller, or, alternatively, the MEAA as an organisation “intimately familiar with Commission procedures should have listed Mr Miller as the second respondent …” 13

The Statutory Framework: s.586

[14] By way of background, s.586 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

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

Can the Original Application be amended to add Mr Miller as a respondent?

[15] In Oznek v Oxford Cold Storage Deputy President Gooley considered the question of amending an application by adding a respondent, and helpfully set out a number of authorities where the Commission has ordered the Respondent’s name to be changed pursuant to s.586 of the Act: 14

“[7] The Commission has, under s.586 of the Act, ordered a respondent’s name to be changed.

[8] In Tobiahs Pty Ltd v Jessica Vidacic 15 the Full Bench rejected as submission by Tobias Pty Ltd that “as it had not been properly served with the originating application for relief naming it as the respondent employer ... the Commission had no jurisdiction to make a decision and order against Tobias.” In that matter the original application had named Foxtons Estate Agents as the employer. In that case there was no order changing the name of the respondent but the orders were directed to Tobias Pty Ltd. The Full Bench said that the reference to the trading name rather than the legal name did not deprive the Commission of jurisdiction.16

[9] In Ms Kataryzna Wybranski v Telstra (Contracted by Regent Recruitment) 17 Commissioner Roe permitted the name of the respondent to be amended. He held that:

“[24] Taken as a whole, the circumstances and the material before me amply demonstrate that the Applicant was seeking to make an unfair dismissal Application against her employer and that she had a reasonably based belief that there was a hybrid employment situation involving Telstra and the labour hire firm Regent Recruitment. I accept that the identification she used “Telstra (Contracted by Regent Recruitment)” was intended to identify that Regent Recruitment had hired the Applicant and that she had worked under an arrangement with and for Telstra.

[25] Telstra is not and never was the Respondent. The Applicant simply failed to accurately specify the Respondent and put in a hybrid name.” 18

[10] Commissioner Roe further considered that if he were not able to amend the application he would have granted Ms Wybranski an extension of time to lodge her application against Regent Personnel Pty Ltd trading as Regent Recruitment.

[11]In T De Silva-McKay v EQ Life Pty Ltd  19 Senior Deputy President Watson held that s.586 of the Act provides a power for the Commission to amend the name of the Respondent.20 His Honour exercised his discretion to allow the amendment because there had been a transfer of business to Equal Media Pty Ltd and the termination of Ms De Silva by EQ Life Pty Ltd came about informally, was not documented and was inconsistent with her contract of employment which required written notice of termination of her employment. She performed the same work under the same conditions for both employers and her termination letter referred to her employment with both entities. In addition there was a clear commercial relationship between both businesses and Equal Media Pty Ltd knew of the application as its representative gave evidence in the hearing.21

[12]In Ioannou v Northern Belting Services Pty Ltd 22 the Full Bench held that s.586 cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made.23 The Full Bench was considering whether it could permit an amendment of an unfair dismissal application to make it a general protection application.

[13]In this case Mr Oznek is not seeking to change the nature of the application.”

[14]He wishes to pursue his unfair dismissal application. He wishes to change the name of the respondent.

[15] In line with existing authority I find that I have the power to grant the application however, the power to amend an application is discretionary.

[16] In his application to amend Mr Oznek did not in any way explain why he made his original application against A.B Oxford or as he suggested later in correspondence against Mr Fleizig, when he knew at the time he was employed by an employment agency. He was provided with a letter from Maric on 11 July 2014 which clearly advised him that his employment with Maric had been terminated. This was before he completed his unfair dismissal application. There is no evidence before me that would support a finding that there was any confusion about the identity of Mr Oznek’s employer. It appears from the documents provided by Mr Oznek that he wants those involved in the incident that led to the ending of his employment brought to account. This is not the purpose of an unfair dismissal claim. An unfair dismissal claim is an action against the employee’s employer alleging that its decision to terminate the employment was unfair.”

[16] In The Australian Workers’ Union v Murphy Pipe & Civil Gas Pty Ltd & Ors, 24 Deputy President Asbury rejected an application to add a new respondent, stating that the case therein was “not one where [the discretion to amend] should be exercised”. The Deputy President continued:

“Cases where the power under s.586(a) has been exercised to add a respondent are limited to those where there has been a technical error in naming the respondent and for all practical purposes the entity sought to be added to the application is already responding to the application.” 25

[17] I have considered the authorities above and I am satisfied that the Commission has the discretionary power under s.586(a) to amend an application by adding a respondent. The issue in this matter is whether to treat the addition of Mr Miller to the proceedings as an amendment of the Original Application, or a fresh application filed out of time. In this matter, I am not persuaded that the circumstances justify the exercise of my discretion in favour of the making of the amendment sought. In coming to my conclusion, I find the following matters particularly persuasive.

•  The evidence before me suggests that the Applicant was aware at the time of filing the Original Application of the facts relevant to support an argument for Mr Miller’s accessorial liability under s.550. 26 The Applicant gave evidence that in providing his initial instructions to his representatives, he “provided [them] with all the documentation”27 and “mention (sic) Mr Miller all the time”.28 There is no evidence before me that the Applicant discovered at any later point further facts which would be relevant to a s.550 argument.

•  While the Applicant emphasised Mr Miller’s intimate involvement in these proceedings, 29 this involvement was always in his capacity as a contact or representative of the Respondent. Unlike those cases where amendment was allowed, the omission of Mr Miller as a respondent in the Original Application was not a technical failure to identify or name the proper legal entity. There is no legal complexity in the Respondent’s corporate affairs that obscured Mr Miller’s involvement in the alleged contravention.30 The Applicant has not, until the filing of the F1, attempted in any way to prosecute a case against Mr Miller in his personal capacity, despite his awareness of Mr Miller’s alleged involvement in the contravention.

•  Mr Princip gave evidence that he was aware as early as around April 2018 of at least a potential sale of the Vesti rights. 31

•  I am not persuaded as to the risk of injustice to the Applicant if Mr Miller is not added to the Original Application prior to the issuing of a certificate, particularly given that the Applicant may be able to name both Mr Miller and Beta Publishing Pty Ltd as respondents in a general protections application to the Federal Court of Australia, whether or not Mr Miller is named on the certificate. 32

[18] In the context of the matters above, I am not persuaded to use the amendment power under s.586(a) to add Mr Miller as a respondent to the Originating Application.

[19] S.586(b) empowers the Commission to waive the requirement under the Fair Work Commission Rules 2013 to lodge an application in the usual manner and the requirement to file a new Form F8. 33 In treating Mr Miller’s addition to the proceedings as a fresh application, I have decided to waive that requirement. I now need to consider whether to accept Mr Miller’s fresh application filed out of time, in accordance with the regime under s.366 of the Act.34

The Statutory Framework: s.366

[20] Subsection 366(1) of the Act provides that:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

[21] Subsection 366(2) of the Act provides that:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

Matters to be taken into account pursuant to s.366(2)

[22] The meaning of ‘exceptional circumstances’ in the context of s 366 of the Act was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd, 35 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional. I will deal with each of the listed matters in s.366 separately.

(a) the reason for the delay;

[23] The Act does not specify what reason for delay might weigh in favour of granting an extension however decisions of the Commission have referred to an acceptable or a reasonable explanation. 36 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd aFull Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.37

[24] The Applicant submits that:

“at the time of the original application on 19 June 2018 … The Applicant had no substantive indication that the respondent may sell the right to publish Vesti in Australia and would potentially no longer be trading in the future.

This information only came to the attention of the Applicant in or around November 2018 when they discovered the Respondent had sold the licence to publish Vesti to another company. It was only after this event occurred the Applicant’s concerns grew, which resulted in the lodgment of the form F1 on 5 December 2018 seeking the (indistinct) of the Commission in adding to (indistinct) of the Respondent.

… So in relation to part A, 366(a) of the Act, the extension of time is in relation to the fact the company has since been found to sell its rights, the rights to publish Vesti.” 38

[25] The crux of the Applicant’s submissions at [24] above is that there were no facts indicating that it was necessary to name Mr Miller in the Original Application. In the circumstances of this case I am not persuaded that the reasons proffered by the Applicant are acceptable. The delay is significant and Mr Princip has given evidence of having suspicions of the Vesti sale as early as April 2018. 39 Further the Applicant submits that Mr Miller was involved in the circumstances of the alleged contravention at all times, and as discussed at [17] above, the Applicant was aware at all times of the elements of Mr Miller’s alleged involvement. In those circumstances, there is no acceptable explanation of the delay of around five and a half months. This weighs against granting an extension of time.

(b) any action taken by the person to dispute the dismissal;

[26] The Applicant submits that “we filed the claim”. 40 The Respondent did not make any submissions in opposition. In the circumstances of this case this factor is neutral.

(c) prejudice to the employer (including prejudice caused by the delay);

[27] The Applicant submits that there is no prejudice to Mr Miller occasioned by the five and a half month delay as “he has been intimately involved since the beginning of the application.” 41 The Respondent submitted that:

“Nidda Verlag is effectively waiting for the end of these proceedings in terms of its instructions as to the future of Beta Publishing, so they are effectively waiting for the ATO case and also this case as to the next steps to take.  At the moment, Beta Publishing is effectively sitting in suspended animation, if I can use that term, sitting there waiting.  So, from that perspective, it would be useful to provide them with certainty and also Mr Miller.  I am not aware of whether he is currently being paid in relation to the issues/efforts with Nidda Verlag and I am not aware in terms of whether that delay will potentially cause him difficulty in terms of seeking other job opportunities there.  It may be something that, you know, he would need to consider, but to prolong the process further would prejudice him.” 42

[28] There is insufficient evidence to find any particular prejudice to Mr Miller if an extension of time were to be granted. In my view, in the circumstances of this matter, this consideration is neutral.

(d) the merits of the application;

[29] The Applicantclaims he was dismissed in contravention of Part 3-1 of the Act. Section 340 provides, among other things, that a person must not take adverse action against another person because the latter has exercised a workplace right. Adverse action is defined in section 324 and includes dismissal. Section 341 provides that a person has a workplace right if, among other things, the person is able to make a complaint or enquiry in relation to his or her employment. The Applicant says he was dismissed for making a complaint to the ATO. The Respondent denies dismissing the Applicant because the Applicant had, or had exercised a workplace right. In addition, the Respondent submits that the Applicant was not an employee of the respondent.

[30] The Applicant submits that “it’s a prima facie case that must be made out and that it’s very clear on the evidence as discussed previously”. 43 The Respondent submits that “the merits of the application will be something that will obviously come out during the hearing but Mr Miller certainly disputes the fact that adverse action was taken and that he should be joined to the application based upon section 550.”44

[31] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 45 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

(e) fairness as between the person and other persons in a similar position.

[32] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion and said at [41]: 46

“…Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[33] Neither party made submissions on this point. I find this criterion to be a neutral consideration in the present matter.

Conclusion

[34] Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that exceptional circumstances exist.

[35] I decline to grant an extension of time under s 366(2). Accordingly, the Applicant’s fresh application naming Mr Miller as respondent is dismissed.

[36] As I have already determined not to amend the Original Application so as to include Mr Miller, a certificate under s.368 will be issued with the name of the existing Respondent only.

[37] Orders giving effect to this decision will be issued separately in PR709583.

COMMISSIONER

Appearances:

Ms Annette Widitz of the Media, Entertainment and Arts Alliance for the Applicant

Mr Sam Puri of the Printing Industries Association of Australia for the Respondent

Hearing details:

2017

Chambers (by telephone)

9 May

Printed by authority of the Commonwealth Government Printer

<PR709387>

 1 Respondent’s submissions dated 2 April 2019 [13].

 2   Transcript PN519.

 3   Email dated 6 March 2019 annexed to Statement of Ray Miller dated 2 April 2019.

 4 Statement of Ray Miller dated 2 April 2019 [6].

 5   Applicant’s submissions dated 26 March 2019; Respondent’s submissions dated 2 April 2019; Applicant’s submissions in reply dated 3 May 2019; Respondent’s additional email submission dated 8 May 2019.

 6 Applicant’s submissions dated 26 March 2019 [6].

 7 Applicant’s submissions dated 26 March 2019 [23].

 8 Applicant’s submissions in reply dated 3 May 2019 [3].

 9   Transcript PN144, PN168-174.

 10   Transcript PN 171.

11 Respondent’s submissions dated 2 April 2019 [3].

12 Applicant’s submissions dated 26 March 2019 [12]-[21], [3]-[7] and [9] respectively; Transcript PN528.

 13   Respondent’s submissions dated 2 April 2019 [3]-[4].

 14   [2015] FWC 189.

 15   [2011] FWAFB 1670.

 16 Ibid at [35].

 17   [2012] FWA 2566.

 18   Ibid at [24]-[25].

 19   [2013] FWC 9203.

 20 Ibid at [10].

 21   Ibid [12]-[14].

 22   [2014] FWCFB 6660.

 23 Ibid at [17].

 24   [2016] FWC 111.

 25 Ibid [145].

 26   Transcript PN 152.

 27   Transcript PN262.

 28   Transcript PN244.

 29   Transcript PN169.

 30   See The Australian Workers’ Union v Murphy Pipe & Civil Gas Pty Ltd & Ors [2016] FWC 111 at [149].

 31   Transcript PN 203, 490, 497.

 32   Bognar v Skilled Offshore Pty Ltd [2016] FCCA 2962.

 33   Erin Guhl v Dredging International Australia Pty Ltd T/A Dredging International Australia; Bechtel (Western Australia) Pty Ltd [2014] FWC 7057 (‘Guhl’) [16].

 34   See Guhl [11]-[16]; Guhl cited in The Australian Workers’ Union v Murphy Pipe & Civil Gas Pty Ltd & Ors[2016] FWC 111 at [141]-[142].

 35   [2011] FWAFB 975.

 36   See respectively Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9]; Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 [16].

 37   [2018] FWCFB 901 [39].

 38   Transcript PN166-168.

 39   Transcript PN 203, 490, 497.

 40   Transcript PN 168.

 41   Transcript PN 169, 162.

 42   Transcript PN 888.

 43   Transcript PN169.

 44   Transcript PN528.

 45   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 46   [2016] FWCFB 6963.