Yin Leung v Rejoice Chinese Christian Communication Centre

[2019] FWC 3402

[2019] FWC 3402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yin Leung
v
Rejoice Chinese Christian Communication Centre
(U2019/256)

COMMISSIONER WILSON MELBOURNE, 21 JUNE 2019

Application for an unfair dismissal remedy.

[1] This decision is further to one issued on 3 May 2019 ([2019] FWC 2981), and deals with the matter of whether a correction or amendment should be made to the identity of the Respondent.

[2] The relevant background includes that on 9 January 2019 Leung Yin Fun, (Ms Leung), made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against the Rejoice Chinese Christian Community Centre Inc (Rejoice). On 23 January 2019 Rejoice filed an Employer Response (Form F3) raising several jurisdictional objections to the application including that Ms Leung was not an employee; was not dismissed and had not served the minimum employment period all of which were dealt with in my decision on 3 May 2019, as well as that Rejoice was not Ms Leung’s employer at the time of her dismissal.

[3] My previous decision dealt in part with these objections as follows:

“[4] The background to Ms Leung’s application is that she has worked at various times for Rejoice. While there appears some contrary evidence 1 Rejoice overall submits that it did not employ Ms Leung after 4 March 2018, and that “Ms Leung was a contractor providing services to Respondent in the period 5 December 2011 – 30 June 2012 and 1 July 2015 – 4 March 2018. The work amount was negotiated in the weekly/biweekly meeting”.2 The evidence shows as well that Ms Leung worked for another entity with a connection of some kind to Rejoice, being Creative Everyday Pty Ltd, (Creative Everyday), which undertakes a project of Rejoice’s known as “Sameway”. Until July 2012 the Sameway project was directly run by Rejoice. After that date, responsibility for the project moved into Creative Everyday.3

[5] Rejoice contests not only that it was not Ms Leung’s employer at the time she says her employment was terminated, but also whether there was a termination at the initiative of the employer. 4

[6] Rejoice, as well as Creative Everyday, have not consented to a correction or amendment of the Respondent’s identification from Rejoice to Creative Everyday however, such may be possible if the circumstances allow, pursuant to s.586(b) of the Act. Without directly addressing the subject of a correction to the identification of the Respondent, Mr Chow who is both the Chief Executive Officer of Rejoice and one of two directors of Creative Everyday and who has agreed he spoke for both entities, 5 implied there may be little utility for a correction or amendment since, in any event Ms Leung as a casual employee would not have completed the applicable minimum employment period even if there had been a termination at the initiative of the employer, whomsoever they may be, on or around 21 December 2018.

…

[62] On the basis of the material before the Commission I am of the preliminary view that Ms Leung made an honest mistake in the completion of her application form and that s.586(b) of the Act may be used to correct or amend the Respondent’s identification from Rejoice to Creative Everyday. It has been accepted by the Full Bench in Djula v Centurion Transport Co. Pty Ltd 6 that s.586 may provide the power to so amend an application by making a change to the identity of the respondent if the evidence clearly weighs in favour of such an amendment, with the power being a matter of discretion.7 I have formed the view that the evidence is in favour of such a change. The relevant evidence includes that Ms Leung had worked for some time first for one and then another entity; that the entities had a close operating relationship of some kind, if not actually being associated entities; that there had been a transfer of business in relation to her employment, with it not being clearly communicated to her that the identity of her employer had changed; and that she was confused at the time her employment ended as to which entity employed her.

[63] If either party objects to me correcting or amending the Respondent’s identification and wishes to be heard in relation to their objection they are to notify my Chambers within 7 days of the date of this decision after which a hearing date will be advised for the determination of the matter. If neither party objects, then the identification of the Respondent in Ms Leung’s application will be changed to Creative Everyday Pty Ltd, with her application then proceeding to the next stage of the usual process associated with unfair dismissal applications.”

[4] Upon review of all of the materials filed in this matter, I note that company documents filed by Mr Chow indicate that the correct presentation of the company name is “Creative Every Day Pty Ltd”.

[5] On 10 May 2019 Rejoice notified my Chambers that it objected to the correction or amendment of the identity of the Respondent shown in Ms Leung’s application on the grounds that Ms Leung had not made an application to the Commission for an amendment to her application and as a result the Commission lacked the jurisdiction to make such an amendment. 8

[6] As a result of the objection, the matter was listed for hearing on 16 May 2019. At the commencement of proceedings Mr Chow, appearing for the Respondent, advised that he desired a complaint he had made to the President about my earlier decision be regarded as an application on his part that I no longer deal with the matter for reason of apprehended bias. That application was subsequently the subject of a decision published on 31 May 2019 in which Mr Chow’s application that I no longer deal with the matter was refused. 9

[7] Subsequently the residual matter relating to whether the identity of the Respondent should be changed was relisted by me for hearing on 5 June 2019.

[8] Ms Leung attended those proceedings on her own behalf with her submissions being assisted by an interpreter, and Mr Chow appeared for the Respondent. In the course of those proceedings, as well as in later correspondence, Mr Chow contested whether Ms Leung had made an application for the identity of the Respondent to be corrected or amended, as well as putting forward that although Rejoice accepted the earlier decision of the Commission that Rejoice should not be the Respondent it did not comment on whether the identity of the Respondent should be changed from Rejoice to Creative Every Day without an application by Ms Leung.

[9] In submissions to the Commission Mr Chow has distinguished his role and positions between those he performs for Rejoice and those performed for Creative Every Day. While Mr Chow is both the Chairman and CEO as well as the founder of Rejoice 10 he submits that he is not in charge of the day to running of the not for profit organisation, and that instead Yeung Yee Big Lilly Chow (also referred to as Lilly Chow)11 the organisation’s volunteer Accountant12 and Secretary13 is who employees report to14 and are supervised by.15 It is noted that Mrs Chow did not appear in any of the hearings for Rejoice.

[10] Further, Mr Chow is one of two ‘sole owners’ of Creative Every Day, with the other being Mrs Chow. 16 Mr Chow is also the Director, Publisher and Chief Editor of Creative Every Day17 with the work of Creative Every Day being under his leadership.18 However, Mr Chow distinguishes the appearance made in the Commission by him on behalf of Rejoice and whether that amounts to an appearance by him on behalf of Creative Every Day. While he accepts that in the course of giving evidence in the original hearing, he said that he was happy to speak on behalf of Creative Every Day19 he puts forward that such answer was given by him in the capacity of a witness and not as a representative of the company.20

[11] As result of the distinction drawn by Mr Chow, correspondence was sent to the Proper Officer of Creative Every Day Pty Ltd after the 5 June 2019 proceedings inviting the company to provide a view on the subject of whether or not the identity of the Respondent should be corrected or amended. The company’s response for most part objects to my previous findings that a transfer of business between Rejoice and Creative Every Day had occurred in which Ms Leung was a transferring employee, subject to a transfer of employment; that Ms Leung was unaware of the transfer; that Ms Leung’s work for both employers was of substantially the same nature; that Ms Leung has completed the requisite 12 months employment period and finally, that Ms Leung was a person protected from unfair dismissal. 21

[12] Mr Chow also took the opportunity to put forth that his responses in the hearing do not amount to submissions by Creative Every Day and that Creative Every Day has not made submissions in this matter to date nor had the opportunity to defend the matter. Submissions given by Mr Chow in his capacity as a Director for Creative Every Day include these;

“As Creative Every Day was NOT named as a Respondent in this case, any action or saying by myself during the hearing should NOT be interpreted as a defence of Creative Every Day. However any information mentioned by Mr Chow related to Creative Every Day in this case could be viewed as true. But any lack of response to claims by Ms Leung related to her work and working conditions related to Creative Every Day should NOT be seen as agreement by Creative Every Day since we were NOT invited to defend the case on behalf of ourselves as Respondent.” 22

[13] Relevant to the matter at hand, Mr Chow puts forth on behalf of Creative Every Day that:

“Creative Every Day agrees that REJOICE should not be a Respondent and Creative Every Day was the employer of Ms Leung at the time of her resignation. However Creative Every Day will not agree with the conclusion that it should be the Respondent as the employment period of Ms Leung was less than 12 months and there was the claimed transfer of business between REJOICE and Creative Every Day could NOT be established.” 23

[14] The question of whether a change to the identity of a respondent may be made is a matter to which s.586 of the Act is applicable. That section provides as follows:

“Correcting and amending applications and documents etc.

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.”

[15] The section has been described by the Full Bench in Lili Sinden v HDR Inc.; HDR Pty Limited 24 (HDR) as being a discretionary power, self-evidently broad. That decision concerned an application made under the Act’s general protections provisions, relating to a termination of employment;

“[11] Section 586(a) of the FW Act provides that the Commission may “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”. The discretionary power conferred by s 586(a) is self-evidently broad, and encompasses but is not expressed as confined to the correction of mistakes. In respect of the amendment power in a previous iteration of the federal legislative scheme for industrial relations, the High Court treated it as having a wide field of operation so as to give effect to the statutory intention that proceedings should be directed to the merits and that technicalities and legal forms should not be regarded. 25 The same approach is applicable under the FW Act having regard to the requirements in s 577(b) for the Commission to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities and in s 578(b) for the Commission in performing functions and exercising powers in relation to a matter to take into account equity, good conscience and the merits of the matter. In the context of the Commission’s unfair dismissal jurisdiction, the s 586(a) power has been used to correct the identification of a respondent employer to the extent of substituting one corporate entity for another.26”27 (references in original)

[16] Part of the debate within HDR included submissions on the part of the respondent to the effect that the description of the entity against whom the lower case had commenced proceedings had been deliberately chosen by her with the Full Bench finding that:

“… the application self-evidently contained a mistake in its description of the respondent which required correction. It was not necessary for the Deputy President to inquire as to the source of or motive for the mistake in order to conclude that there was a mistake. It may be accepted that the mistake was egregious having regard to the seniority of Ms Sinden’s former position within HDR Pty Limited and the fact that she had the benefit of legal representation, but that did not alter its character as a mistake. ...” 28

[17] In T De Silva-McKay v EQ Life Pty Ltd, 29 involving an unfair dismissal matter, Senior Deputy President Watson held that s.586 provides a power for the Commission to amend the name of the Respondent.30 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.

[18] In Ms Kataryzna Wybranski v Telstra 31(Contracted by Regent Recruitment) 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.” 32 

[19] In Djula v Centurion Transport Co Pty Ltd 33  (Centurion), involving another unfair dismissal matter, the Full Bench allowed the amendment finding that:

“[19] Although Centurion was Mr Djula’s employer when he was first engaged, at the time he was dismissed his employer was CFC Consolidated. We note that a copy of some PAYE payment summaries were in evidence and the earliest is dated 6 July 2010. It records the “Payer’s name” as “CFC Employment Trust.” It contains no reference to CFC Consolidated.

…

[26] In our opinion, s.586 did provide the power for the Commissioner to make the amendment sought by Mr Djula. This finding is consistent with existing single member authority. The key consideration in those cases was to the question of whether, in the exercise of the Commission member’s discretion, the amendment sought should be granted. We will later return to the manner in which Commissioner Williams exercised his discretion in this matter.

…

[31] We turn to the alternative basis upon which the Commissioner ruled he would not grant the amendment sought. He indicated that, if he was wrong in his finding about s.586 not being the source of power, in the exercise of his discretion, he would not have granted the amendment. We commence our consideration of this aspect of the appeal by observing that an applicant for such an amendment will need to call evidence sufficient to persuade the Commission that it clearly weighs in favour of the grant of the amendment sought. The facts in this matter are such that, in our opinion, they did warrant the exercise of the Commissioner’s discretion to allow the amendment. In making this finding, we acknowledge it is not the role of a Full Bench in an appeal to merely substitute its preferred ruling for a ruling made in the exercise of a single member’s discretion; error in the ruling must be identified. In this matter, however, we are persuaded that the Commissioner was in error in that he did not give sufficient weight to the uncontested facts. That Mr Djula was able to discontinue his application and commence a new application identifying CFC Consolidated was not an answer to why his application to amend his originating application should not be granted. The merit of the application to amend needed to be considered.

[32] We are also persuaded that the Commissioner applied a wrong principle in deciding to decline to exercise his discretion to grant the amendment on the basis that it would disentitle CFC Consolidated from running an argument about any prejudice to it as a consequence. In our opinion, CFC Consolidated would have been entitled to mount an argument about the prejudice it asserts it would suffer if the amendment was granted. In fact, it did make submissions about this consideration, both to the Commissioner and to us on appeal. The submissions were brief and unpersuasive. There was no evidence of any prejudice CFC Consolidated would suffer if it was to be named as the respondent to the s.394 application.”

[20] In each of these cases there was some element of genuine confusion as to the identity of the employer. In two of the cases there had been a transfer of employment and the applicants in both cases had identified their original employer on the application form.

[21] In this matter, the Employer Response Form, filed by Rejoice on 23 January 2019 stated that it “had stopped giving job directly to the Applicant on March 2, 2018”. Rejoice’s later Outline of Argument, Objections, filed on 18 March 2019, developed the argument, by submitting that “There is no employment relationship Respondent and the Applicant since 4 March, 2018.” 34 Mr Chow’s written statement on the subject, also filed on 18 March 2019 elaborated on the matter of Ms Leung’s employer:

“7. Starting from March 5, 2018, after other staff in Creative Every Day had left, Yin Fun was then employed by Creative Every Day again. Since March 5, 2018, REJOICE has no employment relationship with Yin Fun Leung. She was no longer paid by REJOICE since then.

8. In summary, Yin Fun was employed and paid by REJOICE in the period 5 December 2011 – 27 January 2013 and 22 June 2015 – 4 March 2018 as a casual worker / contractor of her services at different roles.

9. This statement is supported by a listing of her paycheck with serial numbers in this period from REJOICE and also pages from Sameway Magazines indicated the change of ownership of the magazine during June – July 2012 and the leaving of Ms Leung from REJOICE and rejoining Creative Every Day in 4 March, 2018 by taking up a post in the company.” 35

[22] Rejoice further submit that Ms Leung never asked, in the actual hearings of this matter, to amend the identity of the Respondent, 36 advising that it does not “want to comment on whether you should change the name of Respondent to Creative Every Day without an application by Ms Leung”.37 This perspective, of passive disassociation on the part of Rejoice with the matter at hand is featured within Creative Every Day’s submissions;

“I hope the above explaines the position of Creative Every Day in this aspect. In summary, I hope to reiterate that

1. Creative Every Day was NOT named as a Respondent in this case and had not made any defence or contest to claims by Ms Leung except those related to facts it had been requested to make by the order Commissoner Wilson or REJOICE to support their defence to the case.

2. Any conclusion drawn from assuming Creative Every Day should dispute claims by Ms Leung or her submission would be disputed if Creative Every Day be named as a Respondent.

3. Creative Every Day had no position to agree or disagree with the decision of Commissioner Wilson in changing the name of the Respondent in this case. However, Creative Every Day believes that you have no such power and it will make defence if named as a Respondent.” 38

[23] Notwithstanding Creative Every Day’s carefully crafted summary of neither agreement or disagreement, the final sentence of their submissions belies the company’s actual position; there is simply no prospect that Creative Every Day does not actually and meaningfully object to the course of action proposed by the Commission, and it would, within the overall context of the proceedings to date, be disingenuous to consider them to mean something else.

[24] Mr Chow contests that Ms Leung has actually made an application to correct or amend the identity of the respondent referred to in her application. While it is the case that Ms Leung has not made an oral application in the course of the hearings before me for there to be a correction or amendment to the identity of the Respondent, her written response to Rejoice’s Objections Submissions cogently identified her intention. Ms Leung’s 27 March 2019 submission stated:

“…

•  I thought my employer was Rejoice Chinese Christian Communication Centre, based on my interview with Raymond and Alex at the start of my employment.

•  I was never told by Raymond that my employer had changed.

•  Despite not being told, based on the “employer response form” provided by Raymond, I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer.” 39 (underlining added)

[25] I am satisfied that these submissions amount to a request for amendment to her application. For me to consider otherwise would be contrary to the obligations within s.578 and referred to within HDR (extracted above). This is not a circumstance in which there is evidence before the Commission that Ms Leung deliberately chose to pursue her application against Rejoice; instead this is a circumstance in which there is ample evidence that Ms Leung simply did not sufficiently understand the identity of her final employer against whom her unfair dismissal proceedings should be commenced.

[26] I am satisfied that there was genuine confusion on Ms Leung’s part as to who her employer was. While Ms Leung was initially employed by Rejoice, she was unaware that her employer had changed over the entire period of employment and while opposed by Mr Chow 40 the evidence suggests she continued to undertake work of substantially the same nature, at the same workplace, for the same boss, referring to Raymond Chow.41 Ms Leung was also unaware that there had been a transfer of employment.

[27] Ms Leung’s employment was also not the subject of a formal contract identifying her employer. While the employing entity on Ms Leung’s payslips switched between “Rejoice” and “Sameway” there is no evidence that Ms Leung understood this to mean that her employer was changing as a result.

[28] Further, as soon as Ms Leung became aware that her employer had changed, after reviewing Rejoice’s Form F3 and the organisation’s written submissions and witness statement on the subject of its jurisdictional objection, she sought to correct her application.

[29] Rejoice and Creative Every Day’s objection to the indication given by me at the conclusion of the original decision in this matter surround the argument that Ms Leung did not say the words that she wished to amend the identity of the Respondent in the hearings conducted and that accordingly there is no valid application before me from Ms Leung that would lead me to make such an amendment. Such submission, respectfully would not be consistent with the need of the Commission to perform its functions and exercise its powers in the way envisaged in s.577 of the Act, including the need for its actions to be quick, informal and avoiding unnecessary technicalities, or as required in s.578 by taking into account equity, good conscience and the merits of the matter.

[30] In considering the application before me, there is the form of Ms Leung’s indication in her written submissions that “I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer.” 42 Pursuit of such an application requires there to be persuasive evidence on the subject, as well as the exercise of discretion by the presiding member in favour of the application.43

[31] The power to order the change of name of the respondent to a proceeding is discretionary. There was nothing put in the submissions of either Rejoice or Creative Every Day that either would suffer any prejudice if the name of the Respondent was altered, beyond the prejudice that would accrue to any former employer having to respond to an application for unfair dismissal remedy. Further, it is clear that Creative Every Day have been on notice, through its Director Mr Chow, since the application was first filed that Ms Leung alleged her dismissal was unfair. To find otherwise would be to be succumb to unnecessary technicalities. Mr Chow is the only person connected with either entity who has communicated with the Commission on the subject of Ms Leung’s application. The argument that, somehow, Creative Every Day has not known of the application is as arid as it is implausible. Such observation leads inexorably to the finding that had there been real prejudice to either entity with Ms Leung’s application for correction or amendment, then either or both would have provided cogent submissions on the subject.

[32] Having made her application, Ms Leung is entitled to have it determined by the Commission, notwithstanding the feigned disassociation each of the two entities have sought to present. To do otherwise would be to force Ms Leung to withdraw the current application, and then start afresh with another, but this time naming Creative Every Day. Such a pathway would not only be forcing the Applicant to unnecessary technicality, but also to be acting contrary to the need to take account of equity and good conscience, with it previously having been accepted by the Full Bench in Djula that the argument that “Mr Djula was able to discontinue his application and commence a new application identifying CFC Consolidated was not an answer to why his application to amend his originating application should not be granted. The merit of the application to amend needed to be considered”. 44

[33] In this particular case, at the time Ms Leung left employment on 21 December 2018, her employer was Creative Every Day; however, there had been a change in engaging entity on or around 5 March 2018. 45 A finding is not able to be made that “there was an explicit conversation with Ms Leung by anyone on behalf of the two entities to the effect that the identity of her employer was changing or the reasons why the change was being made. The best that the evidence rises on the matter is that the work and subsequently the entity who paid Ms Leung varied throughout her employment due to the changes in business structure of the two entities.”46 The work performed by Ms Leung before and after the change in engaging entity was the same, or substantially the same, with a finding able to be made that Rejoice outsourced to Creative Every Day the work Ms Leung had once performed leading to the finding “that Ms Leung was a transferring employee, subject to a transfer of employment, in relation to a transfer of business between Rejoice and Creative Every Day”.47

[34] Ms Leung’s circumstances are to be compared with the remarkably similar circumstances within the decision of T De Silva-McKay v EQ Life Pty Ltd referred to above in which the applicant had her employment transfer between two entities when work associated with the production of the magazine transferred from one of the other. The applicant was found to be genuinely of the view that she was employed by the entity she named in her application; although that view was wrong it was supported by the practical circumstances in which the work she undertook for each employer was substantially the same and directed towards the same end being the publication of a particular magazine. It was also the case that she worked for each employer subject to the direction of the same person and with the same employees. Senior Deputy President Watson also found that the applicant in question had a genuinely held but wrong belief about her employer. 48 In finality, SDP Watson referred to there being a clear commercial relationship between the two entities; that the senior officer of the company was aware of the application and was a witness in the jurisdictional hearing and that the “application for relief in respect of the termination of employment by the relevant employer will come as no surprise” to the entity to be named in the ongoing application.49

[35] Factors that would weigh against the exercise of my discretion in this matter include that Ms Leung had received for some time payslips marked as coming from “SAMEWAY MAGAZINE (ABN 80159 857 388)”. The ABN referenced is that of Creative Every Day. Ms Leung had received payslips marked in this way for over nine months before she left employment in December 2018. It was also the case, on Mr Chow’s submissions, that it should have been known to Ms Leung that there were different entities involved in using the overall Rejoice physical space with work being undertaken by people at different times for different entities.

[36] Mr Chow also contests that the methods of allocation of work to Ms Leung were the same across the two entities, with him submitting that “In fact, most of the operation of REJOICE (for its Christian bookstore and Community Centre operations) is under the supervision of Ms Yeung (also referred to as Mrs Chow) while most of the operation of Sameway Magazine (Creative Every Day) is under the leadership of Mr Chow as the publisher and Chief Editor. Mr Chow is also involved with the radio projects (Rejoice On Air and SameVoice) for REJOICE which is not so related with the operation of Creative Every Day.” 50

[37] I also take into account as a factor weighing against the exercise of my discretion that Ms Leung did not formally make an oral application in the formal proceedings before me that there should be a change to the identity of the Respondent.

[38] Factors that would weigh in favour of the exercise of my discretion include Ms Leung’s lack of appreciation of the identity of her final employer as well as her submission that she was never told there had been transfer of her employment from one entity to the other. I also take into account in favour of the exercise of my discretion that Ms Leung attempted at the earliest opportunity after she became aware that there was a contest about the identity of the employer to make it plain that she wanted a change the name of the Respondent in her application if that was necessary and that at all times from the commencement of her application against Rejoice Mr Chow, both the Chair of Rejoice and the Director of Creative Every Day has been aware that she seeks to challenge her dismissal. I also take into account as a factor in favour of the exercise of my discretion that Ms Leung’s understanding of employment law is likely basic, as is her understanding of English. At the time she came to make the application it was necessary for her to draw together information she had about her overall employment relationship, including the identity of her employer; endeavour to navigate the Commission’s application form; and then to respond to the objections referred to within the Employer Response Form. Those matters of Ms Leung’s understanding both of her employment relationship as well as of language could, to some extent, have contributed to the error she made at the time she filed her original application. In favour of an exercise of discretion in favour of Ms Leung is that on 27 March 2019 Ms Leung unambiguously stated “I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer.” 51

[39] I take into account generally in relation to my exercise of discretion that on 12 June 2019 Mr Chow provided a critique of the transcript of the hearings conducted by me on 5 April and 16 May 2019. After the hearing of 5 June 2019 was adjourned and my decision was reserved, Mr Chow sought an opportunity to review the Commission’s audio files with a view to making comment on what he saw as deficiencies in the translations made by the interpreter to and from Ms Leung. After being given an opportunity to review the audio files and transcript, on 12 June 2019 Mr Chow returned with comments about the proceedings on 5 April and 16 May 2019. While I have reviewed all of the comments on these matters, their comments do not materially impact upon the findings made in this decision, or, more significantly, cause a lean in one direction or another in relation to the exercise of my discretion under s.586 of the Act. Mr Chow’s commentary is a neutral factor in my consideration of whether I should exercise a discretion in favour of Ms Leung’s application to correct or amend the identity of the Respondent.

[40] I also take into account as a factor weighing in favour of the exercise of my discretion the matters laid out within HDR relating to ss.577(b) and 578(b) regarding the need for the Commission to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities and to perform its functions and exercising powers in relation to a matter to take into account equity, good conscience and the merits of the matter with the Full Bench in that matter considering that the decision at first instance had “prioritised legal forms and technicalities over equity, good conscience and the merits of the matter”. 52 Consideration of those factors causes me to lean towards the exercise of my discretion. In this matter, to accept that a mistake had not been made by Ms Leung or that she should have been aware the identity of her employer was something other than that which she put on her application form, or that she should be denied the opportunity to seek an amendment because she did not say words to that effect that she wished to make an application to change the name of the Respondent in the course of the hearing would be somewhat antithetical to the provisions of ss.577(b) and 578(b). It would be a highly technical outcome as well as lacking in equity and good conscience.

[41] As I result, I am satisfied that it is appropriate to exercise my discretion. The Respondent to the application U2019/256 will be changed to Creative Every Day Pty Ltd, and an order to that effect will be issued.

[42] The matter will now proceed to the unfair dismissal case management team to progress to arbitration on the merits.

COMMISSIONER

Appearances:

Yin Fun Leung on her own behalf.

Raymond Chow on behalf of the Respondent.

Hearing details:

2019.

Melbourne:

5 June 2019.

Printed by authority of the Commonwealth Government Printer

<PR708384>

 1   See Form F3 Employer Response, dated 23 January 2019, pp.7.

 2   Exhibit R1, Respondent Outline of Submissions; Jurisdictional Objection, dated 18 March 2019, pp.21.

 3   Exhibit R2, Witness Statement of Raymond Chow, dated 18 March 2019, [3] – [4].

 4   SeeForm F3, pp.4, 6, 8.

 5   Transcript, PN 67 - 72.

 6   [2015] FWCFB 2371.

 7 Ibid, [30] – [32].

 8   Respondent Objections to amendment of application, dated 10 May 2019, pp. 1 - 4 .

 9   [2019] FWC 3669.

 10   Respondent Submissions, Rejoice Board Members, 4 April 2019.

 11   Respondent Submissions, ‘Is it the case that Rejoice determines the work that Creative Every Day either does or does not perform’, dated 23 April 2019.

 12   Ibid, [11].

 13   Respondent Submissions, Rejoice Board Members, 4 April 2019.

 14   Respondent Reply Submissions, ‘Is it the case that Rejoice determines the work that Creative Every Day either does or does not perform’, dated 1 May 2019, [15].

 15  Ibid, [5].

 16   Respondent Reply Submissions, ‘Is it the case that Rejoice determines the work that Creative Every Day either does or does not perform’, dated 1 May 2019, [5].

 17   Email from Mr Chow, dated 11 April 2019.

 18   Respondent Reply Submissions, ‘Is it the case that Rejoice determines the work that Creative Every Day either does or does not perform’, dated 1 May 2019, [5].

 19   Transcript, 5 April 2019, PN 69 – 72.

 20   Ibid, PN 24, 61, 74.

 21   Creative Every Day Submissions, 19 June 2019.

 22   Ibid, p.1.

 23   Ibid, p.3.

 24   [2018] FWCFB 6934

 25   Re Coldham; Ex parte BLF (1985) 159 CLR 522 at 528-529.

 26   Djula v Centurion Transport Company Pty Ltd[2015] FWCFB 2371.

 27   Ibid.

 28   [2018] FWCFB 6934, [14].

 29   [2013] FWC 9203.

 30   Ibid, [10].

 31   [2012] FWA 2566.

 32   Ibid at [24]-[25].

 33   [2015] FWCFB 2371.

 34   Exhibit R1, Respondent’s Outline of argument: objections, item 6b.

 35   Exhibit R2.

 36   Transcript, 5 June 2019, PN 20 – 22, 42; Email from Mr Chow, 12 June 2019.

 37   Email from Mr Chow, 12 June 2019.

 38   Creative Every Day Submissions, 19 June 2019.

 39   Exhibit A1, Applicant Outline of Arguments Objections, dated 27 March 2019, 6a.

 40   Exhibit R6, Mr Chow’s complaint to the President, 10 May 2019, pp. 1; 8.

 41   Transcript, PN 126

 42   Exhibit A1, item 6a.

 43   [2015] FWCFB 2371 at [30].

 44   Ibd, [31].

 45   [2019] FWC 2981, [44].

 46   Ibid, [45].

 47   Ibid, [57].

 48   [2013] FWC 9203, [12] – [13].

 49   Ibid, [14].

 50   Email from Mr Chow, 1 May 2019.

 51   Exhibit A1, 6a.

 52   [2018] FWCFB 6934, [16]