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. A Full Bench in Chandra Gupta Narayan v MW Engineers Pty Ltd 3 described it as “a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made”. Single members of the Commission have relied on s.586 of the Act to amend an application in respect of the Respondent employer named.4

[10] I am satisfied that s.586 of the Act provides a power to amend Ms De Silva-McKay’s application to name Equal Media Pty Ltd as the Respondent employer.

[11] The question then arises as to whether, as a matter of discretion, the power should be exercised to do so in the particular circumstances of this matter.

[12] In my 10 October 2013 decision, I found that Ms De Silva-McKay was mistaken in this view and that the employer at that time was Equal Media Pty Ltd, with her employment transferring between the two entities on 31 December 2012, consequent upon outsourcing of the production of the Equestrian Life Magazine to Equal Media Pty Ltd. However, I am satisfied that Ms De Silva-McKay was genuinely of the view that she was employed by Equal Media Pty Ltd at the time of the cessation of her employment in respect of the publication of Equestrian Life Magazine. That view, although wrong, was supported by the practical circumstances in which:

● The work undertaken by Ms De Silva-McKay for each employer was substantially the same and was directed to the same end - the publication of Equestrian Life Magazine;

● Ms De Silva-McKay worked for each employer subject to the direction of the same person and with the same employees, even though their employment had transferred between the two employers;

● The termination of the EQ Life Pty Ltd employment came about informally, was not documented and inconsistent with the requirement of the employment contract between Ms De Silva-McKay and EQ Life Pty Ltd for a written notice of termination; and

● The 20 March 2013 letter from Mr Newman to Ms De Silva-McKay terminating her employment with Equal Media Pty Ltd, dealt with her employment, and the termination of the employment, with both EQ Life Pty Ltd and Equal Media Pty Ltd.

[13] In those circumstances, I am satisfied that the belief by Ms De Silva-McKay that she was employed by EQ Life Pty Ltd, rather than Equal Media Pty Ltd, at the time her employment ceased was genuinely held and, although wrong, reasonably held. Ms De Silva-McKay has applied for relief in respect of the termination of her employment and her reasonable confusion as to the identity of the employer at the time of her termination and at the time of making her application for relief supports an amendment to the application to identify Equal Media Pty Ltd as the employer.

[14] There is a clear commercial relationship between EQ Life Pty Ltd and Equal Media Pty Ltd. Further, the current company officer and managing director of Equal Media Pty Ltd, Mr Newman, is aware of the fact that Ms De Silva-McKay is aggrieved by the termination of her employment and brought an application for relief in respect of it. He was a witness for EQ Life Pty Ltd in the jurisdictional hearing. The application for relief in respect of the termination of employment by the relevant employer will come as no surprise to Equal Media Pty Ltd.

[15] Nothing was put to me to suggest that Ms De Silva-McKay’s application, when directed to Equal Media Pty Ltd, was so lacking in merit as to constitute a basis for declining to exercise the discretion to amend the application to name it as the Respondent employer. The only argument as to the prospects of success for the application, when directed to Equal Media Pty Ltd, was put by Mr McKenny–an argument that the s.383–minimum employment period–jurisdictional objection is unsustainable in respect of Equal Media Pty Ltd. In that respect, I am satisfied that the combined effect of ss.384(2)(b), 22 and 311 of the Act are such that Ms De Silva-McKay meets the minimum employment period requirement of s.383 of the Act in respect of Equal Media Pty Ltd in the circumstances of the transfer of her employment from EQ Life Pty Ltd to Equal Media Pty Ltd, consequent upon the outsourcing of her work to Equal Media Pty Ltd.

[16] Having regard to all of these matters, I am satisfied that I should, in the circumstances of this matter, exercise the discretion in s.586 of the Act to amend the application of Ms De Silva-McKay to name Equal Media Pty Ltd as the Respondent employer in place of EQ Life Pty Ltd.

[17] Given that Equal Media Pty Ltd did participate in the conciliation in respect of Ms De Silva-McKay’s application, I will direct the file to the Unfair Dismissal Case Management Team of the Commission to arrange conciliation between Ms De Silva-McKay and Equal Media Pty Ltd.

SENIOR DEPUTY PRESIDENT

Appearances:

M McKenney of Counsel for the applicant.

Hearing details:

2013.

Melbourne:

November 21.

 1   [2013] FWC 7482, at para 80.

 2   [2013] FWC 7482, at para 85.

 3   [2013] FWCFB 2530, at para 6.

 4   For example, Ms Kataryzna Wybranski v Telstra (Contracted by Regent Recruitment)[2012] FWA 2566, Thomas Hobbs v Achilleus Taxation Pty Limited and Others [2012] FWA 2907 and Michael Robinson v Interstate Transport Pty Ltd T/A Fred’s Interstate Transport and another [2011] FWA 696 (an appeal determined in [2011] FWAFB 2728 did not address s.586 of the Act).

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