T De Silva-McKay v Eq Life Pty Ltd - [2013] FWC 9203

[2013] FWC 9203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

T De Silva-McKay
v
EQ Life Pty Ltd
(U2013/8357)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 25 NOVEMBER 2013

Application for relief from unfair dismissal - amendment application - granted

[1] This decision arises in respect of an application brought by Ms De Silva-McKay under s.586 of the Fair Work Act 2009 (the Act) to amend her application for relief in respect of the termination of her employment to name Equal Media Pty Ltd as the Respondent instead of the employer initially named - EQ Life Pty Ltd.

[2] The application to amend was initially raised, as an alternate submission by Ms De Silva-McKay in the course of a hearing to determine a jurisdictional objection to the application by EQ Life Pty Ltd. That jurisdictional application was determined by me on 10 October 2013 in [2013] FWC 7482. As indicated in that decision, it was not possible to hear and determine the application to amend at that time because Equal Media Pty Ltd was not represented at that time and was not appraised of the application to amend or able to be heard in relation to it. 1

[3] In relation to Ms De Silva-McKay’s application to amend, I decided that rather than immediately dismiss the application of Ms De Silva-McKay at that point, I would “afford her an opportunity to formally apply to amend her application to name Equal Media Pty Ltd as the respondent and serve the application on Equal Media”. 2

[4] On 22 October 2013 Ms De Silva-McKay formally applied to amend her application to name Equal Media Pty Ltd as the Respondent employer and served the application upon Equal Media Pty Ltd by means of an email to its Managing Director, Mr J Newman, and by hard copy posted to its registered office.

[5] The notice of listing of a hearing in respect of the application to amend on 21 November 2013 was sent to the email address of Mr Newman on 12 November 2013.

Matters for determination

[6] Mr M McKenny appeared for Ms De Silva-McKay at the hearing on 22 November 2013. No appearance was made for Equal Media Pty Ltd.

[7] I am satisfied that Equal Media Pty Ltd was served with the application to amend and with the notice of hearing and had the opportunity to be heard in relation to the application.

[8] Section 586 of the Act provides that:

“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.”

[9] In its terms s.586 of the Act provides a power to correct or amend any application relating to a matter before the Fair Work Commission (the Commission) on any terms that it considers appropriate.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 9203
Decision Date: 25 NOVEMBER 2013

CaseChat Overview and Summary

The case of T De Silva-McKay versus Eq Life Pty Ltd involved an application for relief from unfair dismissal. The applicant, De Silva-McKay, sought to amend her application to include additional claims related to her dismissal, which the respondent, Eq Life Pty Ltd, opposed on the basis that the amendment would prejudice its case. The Federal Court of Australia was tasked with determining whether the application for amendment should be granted.

The central legal issue before the court was whether the amendment to the application was appropriate and whether it would cause prejudice to the respondent. The applicant argued that the amendment was necessary to fully address the claims related to her dismissal and that any potential prejudice to the respondent could be mitigated. The respondent, on the other hand, contended that the amendment would significantly alter the scope of the proceedings and would prejudice its ability to prepare a defence.

In its decision, the court considered the principles governing amendments to pleadings and the potential for prejudice to the respondent. The court found that the amendment sought by the applicant was not substantially different from the original claims and did not introduce new causes of action. The court also determined that any prejudice to the respondent could be managed through appropriate orders, such as costs or time extensions. Accordingly, the court granted the application for amendment, allowing the applicant to proceed with the additional claims as part of her application for relief from unfair dismissal.

The final orders of the court allowed the amendment of the application to include the additional claims and directed the parties to proceed with the amended application on the merits. The court also made orders regarding costs and the allocation of time for the respondent to respond to the amended application.

Orders