Shane Mathyi v Girgis Group Pty Ltd

[2016] FWC 118

[2016] FWC 118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shane Mathyi
v
Girgis Group Pty Ltd
(C2015/2584)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 JANUARY 2016

Application to deal with contraventions involving dismissal - request to amend application – request refused.

[1] This decision concerns an application made on 1 May 2015 by Mr Shane Mathyi (the Applicant) requesting that the Fair Work Commission (the Commission) exercise the discretion available to it under s.586 of the Fair Work Act (the Act) to amend his general protections application (the original application) which was received by the Commission on 17 April 2015 to change the respondent cited in the application to Girgis Gym Pty Ltd (Jetts Fitness Cannington) (Girgis).

[2] For the reasons set out below, I do not consider it appropriate to amend the original application as requested by Mr Mathyi.

Background

[3] On 17 April 2015 Mr Mathyi made an application under s.365 of the Act alleging that his dismissal on 4 April 2015 by Girgis Group Pty Ltd (the Respondent) was in contravention of the general protections provisions of the Act.

[4] On 24 April 2015, Mr Greg Hart, the Respondent’s Chief Financial Officer (CFO), submitted the Respondent’s Form F8A – Response to general protections application which contended that Mr Mathyi had never been employed by the Respondent and requested that the original application be dismissed.

[5] On 1 May 2015 Mr Mathyi made an application under s.586 of the Act requesting that the original application be amended to cite Girgis as the Respondent. In that application, Mr Mathyi stated that:

• he had mistakenly cited the Respondent in his original application as that was the name that appeared on his payslips and emails and other correspondence from his employer;



• it had been difficult to find the name of his employer as he was not allowed to correspond with his former workmates or any other staff at his former workplace; and



• he thought that Mr Hart represented his employer as all his correspondence is signed Girgis Group Pty Ltd and he had the power to dismiss Mr Mathyi.

[6] Mr Mathyi’s application to amend his original application was heard by the Commission on 14 May 2015. At the telephone hearing, Mr Mathyi appeared on his own behalf, while Mr Hart appeared for the Respondent.

The statutory framework

[7] 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”

Mr Mathyi’s case

[8] At the hearing, Mr Mathyi submitted that it was Mr Hart who dismissed him and that he was confused as to who his employer was, which is why he cited the Respondent in his original application. Mr Mathyi further submitted that he had not been provided with a copy of his Employment Agreement.

The Respondent’s case

[9] Prior to the hearing Mr Hart sent an email to the Commission which was to have attached to it a range of materials, including copies of:

• all payslips sent to Mr Mathyi;



• an example of a payslip email sent to Mr Mathyi;



• a copy of Mr Mathyi’s signed Tax file number (TFN) declaration, a copy of which had previously been provided to Mr Mathyi;



• a copy of an email from Mr Hart to Mr Mathyi dated 6 April 2015; and



• a copy of Mr Mathyi’s signed Employment Agreement and Personal Training Agreement.

[10] However, Mr Hart’s email of 6 April 2015 was not attached.

[11] At the hearing, Mr Hart highlighted that none of the documents which he had provided to the Commission referred to the Respondent. As to his role, Mr Hart submitted that he was the CFO for a number of companies in the Girgis Group and that whilst his email address included the domain name “girgisgroup”, he always referred to a particular company in the subject heading of his emails.

Other developments

[12] The telephone hearing of 14 May 2015 concluded on the basis that Mr Hart would provide a number of documents, including a copy of his 6 April 2015 email to Mr Mathyi, together with the date on which Mr Mathyi was provided a copy of his Employment Agreement to the Commission as soon as practicable. Mr Mathyi was requested to provide any comments on the above by close of business on Wednesday, 20 May 2015.

[13] The Respondent complied with the Commission’s request, advising that a hard copy of Mr Mathyi’s signed Employment Agreement had been left in a locked drawer at the Cannington gym which was accessible by Mr Mathyi and that a scanned version of Mr Mathyi’s Employment Agreement (together with several other documents) was also electronically stored on Dropbox on 14 January 2015. The electronic copies were accessible by Mr Mathyi at all times. While Mr Mathyi provided a range of materials to the Commission, e.g. his Employee Timesheet for the period 23 to 29 March 2015, he did not specifically comment on the material provided by the Respondent.

Consideration of the issues

[14] 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”.

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

• Jetts Fitness Cannington and Mr Mathyi are cited as the parties to Mr Mathyi’s Employment and Personal Training Agreements;



• the covering letter dated 2 January 2015 sent to Mr Mathyi with his Employment Agreement consistently refers to Jetts Fitness Cannington and is signed by Mr Hart as CFO/Jetts Fitness Cannington;



• Mr Mathyi’s TFN declaration cites Girgis Gym Pty Ltd as the business paying the tax on behalf of Mr Mathyi;



• Mr Mathyi’s payslips are all headed “Girgis Gym Pty Ltd”;



• the payslip email of 15 April 2015 (i.e. after Mr Mathyi had been dismissed) from Ms Juliana Chiou has as its subject heading “From Girgis Gym Pty Ltd”;



• Mr Hart’s email to Mr Mathyi of 6 April 2015 is headed “Girgis Gym – Confirmation of Termination of Casual Employment and PT Agreement for Shane Mathyi” but is signed by Mr Hart as CFO Girgis Group Pty Ltd;



• attached to that email were copies of Mr Mathyi’s Employment and Personal Training Agreements;



• an email from Mr Mathyi to Mr Hart of 5 April 2015 states among other things “… I do require written notification confirming termination in writing or E Mail … Till such time I still acknowledge my employment with jetts Cannington”; and



• the Timesheet provided by Mr Mathyi is headed “Jetts Cannington Employee Timesheet”.

[16] In short, the material clearly indicates that Mr Mathyi’s employer was not the Respondent. Further, the material before the Commission does not support Mr Mathyi’s submission that he cited the Respondent in his original application as that was the name that appeared on his payslips and emails and other correspondence from his employer. To the contrary, it is clear from Mr Mathyi’s payslips that Girgis Gym Pty Ltd is his employer. I note also that on 6 April 2015, i.e. after Mr Mathyi had been dismissed, he was provided with copies of his Employment and Personal Training Agreements. Again, this is inconsistent with Mr Mathyi’s submissions. Accordingly, it is difficult to fathom why Mr Mathyi erred in citing the Respondent in his original application.

[17] In those circumstances, I do not consider it appropriate to amend the original application to cite Girgis Gym Pty Ltd as the respondent.

[18] As to the Respondent’s request that the original application be dismissed, while I consider that Mr Mathyi’s original application has no reasonable prospects of success, I am precluded by s.587(2)(b) of the Act from dismissing the application on that ground. As the application was made in accordance with the Act, I am also unable to dismiss the original application on that basis as to do so would be inconsistent with s.587(1)(a) of the Act. In those circumstances it is up to Mr Mathyi to decide whether he wishes to press or discontinue his original application. I would strongly encourage Mr Mathyi to seek advice as to his options, particularly given the scope for an application for costs against him should he decide to press his original application.

Conclusion

[19] For the reasons outlined above, I do not consider it appropriate to amend the original application to cite Girgis Gym Pty Ltd and decline Mr Mathyi’s request that the Commission exercise the discretion available to it to do so.

[20] In terms of next steps, the original application will now be listed by the Commission for conference in accordance with s.368 of the Act, unless of course Mr Mathyi decides to discontinue his application.

Appearances:

S. Mathyi on his own behalf.

G. Hart for the Respondent.

Hearing details:

2015.

Canberra and Perth (telephone):

May 14.

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