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…

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: [2015] FWC 189
Decision Date: 12 JANUARY 2015

CaseChat Overview and Summary

The case of Yasin Oznek v Oxford Cold Storage was heard in the Fair Work Commission. Yasin Oznek, the applicant, sought to amend the named respondent in the proceedings to reflect the correct employer, and he also sought relief from an unfair dismissal. The dispute arose from Oznek’s employment termination by Oxford Cold Storage, which he contested as unfair.

The primary legal issues before the Commission were whether Oznek was entitled to amend the named respondent in his application and whether his dismissal was indeed unfair. The Commission had to consider the procedural fairness in allowing the amendment of the respondent and the merits of the unfair dismissal claim. In examining the amendment of the respondent, the Commission assessed whether the delay in filing the amendment had prejudiced the respondent and whether there were justifiable reasons for the delay. Regarding the unfair dismissal, the Commission needed to determine if the dismissal complied with the requirements of the Fair Work Act and whether it was substantively unfair.

The Commission found that the amendment to the named respondent was permissible as there was no undue prejudice to the respondent and the applicant had a reasonable explanation for the delay. The Commission acknowledged that the dismissal process did not strictly adhere to procedural fairness, but it concluded that the dismissal was not substantively unfair given the circumstances. The Commission held that Oznek’s dismissal was justified based on the evidence presented, and thus, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission's final orders were that the amendment to the named respondent was allowed, but the application for relief from unfair dismissal was dismissed, with no orders for compensation or reinstatement.

Orders