Watcharin Phuaprasert v Australia Personnel Global Pty Ltd

[2017] FWC 4954

[2017] FWC 4954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Watcharin Phuaprasert
v
Australia Personnel Global Pty Ltd
(U2017/6865)

Waqar Hussein
v
Australia Personnel Global Pty Ltd
(U2017/7501)

Ali Mohammadi
v
Australia Personnel Global Pty Ltd
(U2017/7504)

COMMISSIONER PLATT ADELAIDE, 22 SEPTEMBER 2017

Procedural decision – correction to party names – jurisdictional objection to be heard with merits – matters to be heard consecutively – other matters.

Summary

[1] This decision concerns a number of procedural matters in relation to three applications made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Watcharin Phuaprasert, Waqar Hussein and Ali Mohammadi (the Applicants) seeking a remedy for alleged unfair dismissals by their former employer Australia Personnel Global Pty Ltd (APG) (collectively the Matters) which have been listed for hearing on 30 and 31 October and 1, 2 and 3 November 2017.

[2] This decision addresses amendments to party names, whether the jurisdictional objections will be heard before the merits of the applications and whether the Matters will be heard consecutively or concurrently

Relevant legislation

[3] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1)  The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2)  The FWC may make an interim decision in relation to a matter before it.

(3)  The FWC may make a decision under this section:

(a)  on its own initiative; or

(b)  on application.

(4)  This section does not limit the FWC's power to make decisions.”

[4] Section 578 of the Act contains matters that the Commission must take into account in performing its functions.

[5] Section 381 of the Act provides the objects of Part 3-2 of the Act which deals with unfair dismissal matters:

“381 Object of this Part

(1)  The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note:          The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.”

Amendments to party names

[6] The application by Ms Phuaprasert correctly names the respondent as Australia Personnel Global Pty Ltd whereas the applications by Mr Hussein and Mr Mohammadi record the respondent name as Australian Personnel Global Pty Ltd.

[7] On 22 August 2017, Ms Macfarlane of Marsdens Law Group on behalf of the respondent made a request via email that I exercise my discretion pursuant to s.586 of the Act to amend the respondent name in matters U2017/7062, U2017/6865, U2017/7501 and U2017/7504 to Australia Personnel Global Pty Ltd (ACN 126 135 144) so as to properly identify the respondent.

[8] As I had already exercised my discretion pursuant to s.586 of the Act on 18 August 2017 to amend the respondent name in matter U2017/7062 from Australian Personnel Global Pty Ltd to Australia Personnel Global (ABN 24 135 632 235), I requested that the respondent confirm its correct name in all matters and sought the views of Mr Snowball of the National Workers Union (NUW), the representative for all applicants.

[9] On 25 August 2017, the respondent filed an ASIC search screenshot that was undertaken on 21 August 2017 confirming the name and ACN of the respondent as Australia Personnel Global Pty Ltd (ACN 126 135 144).

[10] Mr Snowball has advised that each applicant consented to the request to amend the respondent’s name.

[11] Accordingly, I exercise my discretion pursuant to s.586(a) of the Act to amend the application so as to properly identify the respondent as Australia Personnel Global Pty Ltd (ACN 126 135 144) (APG) in matters U2017/6865, U2017/7501 and U2071/7504.

[12] On 5 September 2017, Mr Snowball of the NUW notified the Commission that there was also a typographical error in the applicant’s name in matter U2017/6865. APG in its submissions in reply filed on 14 September 2017, did not object to the amendment to the applicant’s name. The correct spelling is Watcharin Phuaprasert and accordingly I exercise my discretion pursuant to s.586(a) of the Act to amend that application.

Whether the jurisdictional objection will be dealt with by way of separate hearing or with the merits

[13] On 31 August 2017, after the Directions had been issued for the Matters, APG filed a Form F4 Objection to Unfair Dismissal Application which identified two jurisdictional objections, that the Applicants were not dismissed and did not meet the minimum employment period. APG requested that in accordance with Part 3-2, Division 5 of the Act, the jurisdictional objections be considered before assessing the Applicants applications. APG did not file any additional submissions in relation to this issue.

[14] The Applicants position on this issue can relevantly be summarised as follows:

● The jurisdictional objections should be heard and determined together with the merits of the applications which is consistent with the objects in Part 3-2 of the Act.
● The jurisdictional objections raised by APG are a question of fact and the parties are likely to call evidence in support of their positions. The witnesses are likely to be the same as those called in relation to the merits. Calling the witnesses twice would result in unnecessary expense to the parties and to the Commission.
● There is no prejudice to APG as a result of hearing the jurisdictional objections together with the merits.

[15] In my view, the overlap between the facts in the jurisdictional and merit issues is such that will be more efficient to conduct a single hearing rather than potentially conduct two hearings and as such the jurisdictional objections raised by APG will be heard with the merits on 30, 31 October and 1, 2 and 3 November 2017.

Whether the matters will be heard consecutively or concurrently

[16] On 21 August 2017, I conducted a Directions Conference via telephone for the Matters. APG indicated that it was of the view that the Matters should be heard consecutively. On the same day, I issued Directions indicating that I would determine whether the Matters would be heard consecutively or concurrently by 10 October 2017 – after I had reviewed all of the material filed by the parties.

[17] Although not directed, the Applicants and APG filed submissions on 7 September 2017 addressing this procedural issue.

[18] APG’s position can be relevantly summarised as follows:

● Pursuant to s.589(1) of the Act the matters of Mr Mohammadi and Mr Hussein should be heard concurrently as the matters relate to an end of assignment with Baiada due to performance related issues/conduct.
● Pursuant to s.589(1) and s.578(b) of the Act the matter of Ms Phuaprasert should be heard consecutively, after the matters of Mr Mohammadi and Mr Hussein, as it relates to an end of assignment at Baiada due to the operational requirements of Baiada.
● The facts of Ms Phuaprasert’s matter are significantly distinct and separate from that in Mr Mohammadi’s and Mr Hussein’s matters.
● APG acknowledges that the Commission needs to establish procedures for dealing with unfair dismissal matters that are quick, flexible and informal, taking into consideration the needs of the employer pursuant to s.381 of the Act. However, hearing the matters concurrently would prejudice APG.
● The matters were lodged separately and not concurrently due to the matrix of factual issues not being applicable to all three matters.
● Whilst the convenience of the Commission, Applicants, APG and the respective witnesses needs to be taken into consideration, procedural convenience should not be preferred where there is a risk of prejudice and unfairness to APG.
● Pursuant to s.399(1) of the Act the most effective way is to hear the Matters consecutively.
● The overarching object of Part 3-2 of the Act, as in s.381(1)(2) of the Act, is that the Commission must ensure a ‘fair go all round’. The only way APG will be given a fair go all round is if Ms Phuaprasert’s matter is heard consecutively.

[19] The Applicants position can be relevantly summarised as follows:

● The Matters should be heard together with separate decisions being issued in each matter.
● There is likely to be a significant amount of common material.
● There is likely to be witness evidence that is common across the Matters. For example, Mr Whenan’s evidence is largely identical across the Matters and it is anticipated that APG will call common witnesses.
● Hearing the matters together will result in less time and expense for all parties and the Commission and is consistent with the objective of Part 3-2 of the Act.
● There would be no prejudice to APG.

[20] Having reviewed the material filed and pursuant to 589(1) of the Act I have determined that the most effective and efficient manner to conduct the hearing of the Matters is to hear them concurrently. I do not believe this approach will result in prejudice or unfairness to APG. In making this decision, I have taken into account the efficient utilisation of the Commission’s resources, the existence of common witnesses and material, and the fact that interpreters will be provided for each applicant whilst giving evidence. In reaching this conclusion, I have been guided by s.381 and s.578 of the Act.

[21] In order to ensure the efficient conduct of the hearing, I direct that the first three witnesses to be called will be Ms Phuaprasert, Mr Mohammadi and Mr Hussein followed by any other witnesses to be called by the Applicants.

[22] I also direct that all representatives and witnesses be personally present at the hearing.

COMMISSIONER

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