Yasin Oznek v Oxford Cold Storage

[2015] FWC 189

[2015] FWC 189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yasin Oznek
v
Oxford Cold Storage
(U2014/11418)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 JANUARY 2015

Application to amend the named Respondent in U2014/11418; Application for relief from unfair dismissal.

[1] Mr Yasin Oznek made an application for an unfair dismissal remedy. Mr Oznek named as the respondent to that application, Oxford Cold Storage.

[2] In the employer response filed by A.B. Oxford Cold Storage Co Pty Ltd (A.B Oxford), it objected to the application on the grounds that it was not Mr Oznek’s employer as he had been employed by a labour hire company Maric Group Pty Ltd (Maric). The application was initially listed for hearing on 17 -18 November 2014 to deal with both the objection and the application.

[3] On 6 October 2014, A.B Oxford filed its submission and witness statement in support of its objection and asked that the objection be heard and determined prior to the merits. Included in its material was a statement from Mr Ian Chesser, a director of Maric. Mr Chesser stated that Maric was Mr Oznek’s employer and that Mr Oznek had abandoned his employment and hence his employment was terminated.

[4] As a result the application was listed for a telephone mention on 10 October 2014. On 23 October 2014, Mr Oznek applied to change the name of the Respondent to the proceeding to Maric Group Pty Ltd. That application attached a letter of termination from Maric.

[5] That application was listed for hearing on 6 November 2014. Mr Oznek did not attend the hearing and did not contact the Commission prior to the hearing to advise why he was unable to attend. Mr Chesser, on behalf of Maric, attended and opposed the application. He stated that Mr Oznek was aware of who his employer was and knew at the time he made the application that he was not employed by A.B. Oxford. He submitted that he had attempted to contact Mr Oznek at the time of the dismissal but he did not return his calls.

[6] On 8 November 2014, Mr Oznek sent an email to chambers in which he said he did not attend the hearing for work reasons. He advised that he had sought legal advice. On 23 November 2014, Mr Oznek sent a further email in which he advised that he had hoped the hearing would have proceeded in his absence. Mr Oznek disputed that Mr Chesser had attempted to contact him at the time of the dismissal. For the purpose of this decision, it is not necessary to resolve this disputed fact.

Can an application be amended to permit a change in the name of the Respondent?

[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 1 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.2

[9] In Ms Kataryzna Wybranski v Telstra (Contracted by Regent Recruitment) 3 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.” 4

[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 5Senior Deputy President Watson held that s.586 of the Act provides a power for the Commission to amend the name of the Respondent.6 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.7

[12] In Ioannou v Northern Belting Services Pty Ltd 8 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.9 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.

[17] I note that Mr Oznek was unrepresented, though in his original application he advised that he “was pursuing this through Human Rights Victoria and a private lawyer.”

[18] Had Mr Oznek attended the hearing he may have been able to provide a satisfactory explanation for his failure to correctly identify his employer. However he did not attend the hearing and did not seek an adjournment of the application. This was Mr Oznek’s application and the obligation was on him to persuade the Commission to exercise its discretion in his favour particularly when the application was opposed by Maric.

[19] In all the circumstances I am not prepared to exercise my discretion to permit the amendment of the application and that application is dismissed.

[20] As a result it is necessary to deal with Mr Oznek’s original application for an unfair dismissal remedy. Section 397 of the Actprovides that the Commission must conduct a hearing if there are disputed facts. In this case there is no dispute that A.B. Oxford was not Mr Oznek’s employer and I have decided not to conduct a hearing. As A.B. Oxford was not Mr Oznek’s employer his claim for an unfair dismissal remedy must fail.

[21] Mr Oznek’s application for an unfair dismissal remedy against A.B. Oxford Cold Storage Co Pty Ltd is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Ian Chesser appearing on behalf of Maric Group Pty Ltd.

 1   [2011] FWAFB 1670.

 2 Ibid at [35].

 3   [2012] FWA 2566.

 4   Ibid at [24]-[25].

 5   [2013] FWC 9203.

 6 Ibid at [10].

 7   Ibid [12]-[14].

 8   [2014] FWCFB 6660

 9   Ibid at [17]

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