Termination of employment - application to amend originating application - addition of parties - extension of time in which to apply

[1] Jamie Orlikowski has applied for leave to amend his application for a relief in relation to the termination of his employment. The substance of the application is to join Australian Quarantine and Inspection Service (AQIS) as a respondent to the application. The original application for relief, which named IPA Personnel Pty Ltd (IPA) as the respondent, was lodged pursuant s.643(1)(a) of the Workplace Relations Act 1996 on 29 January 2009 and alleges that the termination of his employment was harsh, unjust or unreasonable.

[2] On 5 March 2009 Mr Orlikowski was directed to serve a copy of the application for leave to amend his original application along with his contentions in that regard, on IPA and AQIS, each of which was directed to file and serve their defence and contentions, if any, in response.

[3] The grounds of the current application are to the following effect:

1. AQIS was the substantive employer pursuant to a labour agency arrangement for approximately four and a half years;

2. Work undertaken by the applicant pursuant to his employment was performed at the direction and control, and for the benefit of AQIS;

3. The applicant was continually and exclusively employed during the relevant period at AQIS' workplace;

4. The applicant's application was filed in time in accordance with the Act.

5. IPA has subsequently raised an argument based on non-jurisdiction since the original application was lodged

6. The applicant has recently been apprised of materials now available which indicate the applicant was employed on a joint-employment basis.

[4] The application was heard on 9 April 2009, at which time appearances were entered. Mr G McKeown, of counsel, appeared for Mr Orlikowski. Ms C Fitzgibbon, of counsel, appeared for IPA. Mr P Vane-Tempest, of counsel, appeared on behalf of the Commonwealth represented by AQIS. The Applicant tendered a witness statement. Two witness statements of Ms Teresa Carbone-Mustica, IPA Branch Manager, were filed on behalf of IPA.

[5] Counsel for Mr Orlikowski submitted that he had worked for AQIS through a labour agency arrangement for an extended period of four and a half years. The labour agencies, Workforce International Pty Ltd (Workforce) and recently, IPA, were described as payment mechanisms. The applicant was in every meaningful sense, counsel contended, working for AQIS. AQIS directed and managed him in the performance his work. The termination of his employment was initiated by AQIS. Counsel submitted the joinder of AQIS as a respondent to the application allows the following arguments to be pursued:

• AQIS and Workforce/IPA jointly employed of Mr Orlikowski.

[6] Counsel submitted that a refusal of leave to amend the application to join AQIS as a Respondent would deprive Mr Orlikowski of his right to pursue the application. Further, it was submitted, leave should be granted to allow the determination of the substantial merits of the matter to be heard.

[7] IPA submitted that the application is an impost on its resources and an unnecessary cost. Further, IPA submitted if Mr Orlikowski believed AQIS was his employer the application against it ought to have been made within the time limits. and given the application is outside the time prescribed, it should be refused. Further, it was submitted the concept of joint employment has not been accepted in Australian Law. In any event, Mr Orlikowski had not completed a qualifying period of employment with IPA and joint employment could not have exceeded the period of employment with IPA.

[8] AQIS submitted the Commission does has not have the power to order that a party is joined to proceedings and the power conferred by s.111(1)(l) of the Act should not be exercised. The application is in substance and effect, a second application for relief for termination of employment. AQIS submitted they should not be joined as a party to the proceedings because:

• the Commission's power to amend should not be exercised to permit the applicant to abandon the original application and substitute it with another;

• the application falls outside the circumstances contemplated by s.673 of the Act whereby the applicant is allowed to make a second application under s.643 of the Act in relation to the termination of his employment;

• the application to amend was not lodged within 21 days after the applicant was given notice of the termination of his employment.

[9] Further, AQIS contended, having regard to equity, good conscience and the substantial merits of the case, the Commission should not exercise its discretion to allow the amendment AQIS further submitted that it should not have to incur the substantial cost and time to defend the amended application.

[10] The issue to determine is whether AQIS should be added as a party to the proceedings. Although the reasons for adding AQIS as a party are a relevant consideration those matters do not give rise to issues that fall for determination in these reasons for decision. The arguments opposing an order adding AQIS as a party raise three substantive issues. Firstly, does the matter fall within the principles governing addition of parties. Secondly, is Mr Orlikowski's application to amend conditionally barred by the operation of s.673 of the Act and, if so, should it be permitted in the exercise of the discretion conferred by s.673 of the Act. Thirdly, is the application out of time in any event and, if so, should time be extended.

[11] Prior to the commencement of the Workplace Relations Amendment (Work Choices) Act 2005 the pre-reform Act contained an express power to "direct parties to be joined or struck out". [1] The Act does not currently contain that express power. It is not clear if the pre-reform Act relied on the distinction between parties that could be joined prior to commencement of action and parties that must be added after filing the originating process. In any event, the absence of an express power in the Act should not limit the broad discretionary power conferred by s.111(1)(l) of the Act to amend an application. Further, pursuant to s.110(1)(c) of the Act the Commission must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

[12] The fundamental principle governing the addition of a party to a proceeding is that the party ought to have been joined prior to the commencement of the proceedings. In Birtles v Commonwealth [2] Adam J suggests it is appropriate to join each possible respondent when the applicant is in doubt as to who is liable and having all present will resolve the issues. Adam J observed that an overly technical approach to the construction of an analogue to the Federal Court Rules 1979 (Cth), O 6, r 2 was "out of harmony with the modern concept that litigation is no mere game of chess to be lost by one false move."[3]

[13] There is a body of law which suggests the party to be added must be necessary to settle all matters in issue. Certain courts have suggested a party is necessary only if the party has a legal, not merely commercial, interest in the outcome of the matter [4] Other courts suggest that such a test is too limiting and the distinction between commercial and legal interests is not helpful to determine the question of necessity. Recently courts have adopted rules which allow the addition of a party when it is considered just and convenient to do so.

[14] In my view s.111(1)(l) of the Act confers power on the Commission to amend unfair dismissal applications by adding a party as a respondent to the proceeding. This section contrasts with s.111(1)(m) of the Act which empowers the Commission to correct, amend or waive any error, defect or irregularity whether in substance or form. Subject to the Act, it would be appropriate pursuant to s.110(1)(c) of the Act if the Commission considered it just and convenient to do so.

[15] The Applicant expressed doubt as to the identity of the employer that terminated his employment. The original application lodged nominated IPA as the employer a labour hire company that, as a result of a successful tender, replaced Workforce as the labour service provider to AQIS. Mr Orlikowski was initially engaged by Workforce to work at AQIS when he commenced working at AQIS on or about August 2004. During conciliation the question arose as to whether AQIS was the employer. In my view AQIS ought to have been joined as a respondent to the original application. I am satisfied, as a matter of principle, that it is just and convenient that AQIS now be joined as a party to the proceedings to resolve the question of liability. The arguments against the proposed order to add AQIS as a party must be considered.

[16] Section 673 of the Act presents a conditional bar to an application under s.643. It is conditional in two respects. First it is conditional on the existence of a prior application under s.643 in respect of the same termination of employment. The second condition is the Commission's discretion to accept the application as a matter of fairness. Section 673 of the Act provides:

"673 No second applications under section 643 concerning same termination to be made

An application must not be made under section 643 in relation to a termination of employment of an employee where a previous application under section 643 was made in respect of the same termination unless the second application corrects an error in the previous application, or the Commission considers that it would be fair to accept the second application."

[17] The literal application of s.673 of the Act appears to bar any application made in respect of an existing application under s.643 in respect of a termination of employment. This would occasion an absurd result and is not what Parliament intended. Section 673 of the Act, with the exception of numbering, is identical to s.170HBA of the pre-reform Act. Section 170HBA was introduced into the Workplace Relations Act 1996 by Act No. 100 of 2001. In his Second Reading Speech introducing the Bill, the Minister referred to the provisions in the following terms:

"Similar uncertainty for employers and scope for double jeopardy situations can arise under the current provisions, which enable an employee to bring multiple actions under the Workplace Relations Act 1996 in respect of the sane termination. The Bill proposes to ensure that only a single application can be made in respect of a dismissal, ensuring that once an employee has had his or her 'day in court' then that settles the matter conclusively".

[18] The meaning and purpose of s.673 is elucidated by s.643 of the Act, to which attention is directed by s.673 of the Act itself. Section 643 of the Act provides:

"643 Application to Commission to deal with termination under this Subdivision

(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; or

(b) on the ground of an alleged contravention of section 659, 660 or 661; or

(c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).

(2) Subject to subsection (13), an employee whose employment is proposed to be terminated by the employer may apply to the Commission for relief on the ground of an alleged contravention of section 660.

(a) an employee's employment has been terminated by the employer; and

(b) a trade union's rules entitle it to represent the industrial interests of the employee;

the union may, on behalf of the employee, apply to the Commission for relief on the ground or grounds of an alleged contravention of one or more of sections 659 and 661.

(4) Subject to subsection (13), if an employee's employment has been terminated, or is proposed to be terminated, by the employer:

(ii) whose rules entitle it to represent the industrial interests of the employee; or

(c) an officer or employee of such a union - if the union's rules authorise the officer or employee to act on the union's behalf;

may apply to the Commission for relief on the ground of an alleged contravention of section 660."

[19] Section 673 of the Act bars multiple applications under s.643 . Section 643 of the Act allows three types of applications in respect of an employee whose employment has been terminated and two types in respect of an employee whose employment is proposed to be terminated. One type is an application by an employee whose employment has been terminated, another by an employee whose employment is proposed to be terminated, one by a trade union in respect of an employee whose employment has been terminated and one by an inspector or a trade union or its officer in respect of an employee whose employment has been terminated or is proposed to be terminated.

[20] A dismissed employee may apply to the Commission for relief in respect of the termination of their employment on any one of four grounds; or on a combination of all or any of the four grounds. The four grounds are whether the termination of employment was:

• effected without the required period of notice or payment in lieu; or

• one of 15 or more employees in respect of which the employer failed to provide the required information to the Secretary of the Department.

[21] A trade union entitled to represent the employee, may apply for relief in relation to a termination for an alleged prohibited reason and/or failure to give notice or payment in lieu of notice. An inspector, a trade union entitled to represent the employee or an officer of such union, may apply for relief in respect of an employee whose employment has been terminated or is proposed to be terminated as one of 15 employees without the employer providing the required information to the Secretary of the Department.

[22] In my view, on a proper reading, the object of s.673 is two-fold. Firstly, it is intended to limit the applications that can be made to only one of the four possible types, or a combination of such, identified in s.643 of the Act. For example, a trade union or an inspector may not make an application for relief in respect of the termination of an employee who had lodged an application seeking relief in respect of the same termination of employment. Secondly, s.673 of the Act is intended to limit the number of applications that may be made in respect of the available grounds, to a single application. For example, a dismissed employee who has applied for relief alleging harsh, unjust or unreasonable termination of employment and/or termination for a prohibited reason could not make a second application alleging failure to give notice. In both instances however, the Commission may allow an additional application if it corrects an error or if it considers it would be fair to do so.

[23] In my view s.673 of the Act is intended to reflect the Anshun [5] principle and the principle of res judicata. The Minister's second reading speech which introduced the Bill that inserted 170HBA into the Workplace Relations Act 1996 reflects these principles. Specifically, the second reading speech stated the Bill proposes to ensure that only a single application can be made in respect of a dismissal, ensuring that once an employee has had his or her 'day in court' then that settles the matter conclusively. The doctrine of res judicata stipulates that:

"…where an action has been brought and judgment has been entered in that action, no other proceeding can thereafter be maintained on the same cause of action." [6]

[24] This principle would be applicable to applications in which a dismissed employee was unsuccessful in an application under s.659 of the Act and a trade union subsequently sought to make an application under s.659 of the Act in respect of the same termination of employment.

[25] The Anshun principle extends the res judicata doctrine so that it not only points to what a court was actually required by the parties to form an opinion about, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [7] This principle would be applicable where a dismissed employee, having been unsuccessful in an application for relief on the ground that the termination of employment was harsh, unjust or unreasonable, sought to apply for relief by way of a fresh application under s.659 of the Act. It is to be expected that the employee would have combined the s.659 of the Act aspect in the original application. It would also apply to applications that seek to add a ground of relief.

[26] I am not satisfied that the application before me to join a party to the proceedings is of the type contemplated by s.673 of the Act. In the alternative, I regard it as fair to allow the application to proceed. This is on the basis of the considerations identified by Harrison SDP in Pauza v. Bytecraft Automation Pty Ltd. [8]

[27] It is established that an amendment is back-dated to the date of the document which is amended. The amendment in this matter however, is not merely an amendment to a name of a party due to misnomer. The application requires the addition of a new party. The addition of a party takes effect from when the new party is actually added, therefore, time limits apply. [9]

[28] The relevant time limit is 21 days, or within such period as the Commission allows an application to be made during or after those 21 days. The relevant considerations are those set out in Brodie-Hanns v MTV Publishing Ltd. [10] I turn now to those considerations, namely:

• was there an acceptable explanation for the delay;

• other action taken by the applicant to contest the termination;

• consideration of fairness between the applicant and other persons in a like position.

[29] Explanation for the delay**:** Mr Orlikowski's employment was terminated on 9 January 2009. His application for relief in respect of the termination of his employment was lodged on 29 January 2009. He did not name AQIS as his employer in his application, however, he identified AQIS as his place of work and stated he worked for AQIS for a period of four and a half years, initially as a labourer and then as a team leader for the last three years of his employment.

[30] Mr Orlikowski's application for relief in respect of the termination if his employment was listed for conciliation on 18 February 2009. During the conference he raised the issue of AQIS being the employer and the possibility of amending the original application. On 5 March 2009 directions were issued for Mr Orlikwoski to file and serve his application to amend by 11 March 2009, along with directions for responsive submissions to be filed and served by AQIS and IPA. Mr Orlikowski filed the application to amend on 10 March 2009.

[31] Neither party led evidence about the reason for the delay. Although Mr Orlikowski was aware that he was engaged through a labour hire company it is a reasonable inference that there may have been confusion about whether IPA was the true employer. AQIS argued that Mr Orlikowski would have known who his employer was as legally qualified people assisted in completing his application. Without intending any criticism of Mr Orlikowski's legal representative, there is a degree of complexity about the issue. On one hand, the written agreement between Mr Orlikowski and IPA suggested that IPA was his employer. This must be weighed however, against the fact that during the four and a half years of his employment the service provider changed from Workforce International to IPA and throughout this transition Mr Orlikowski continued to work full time at AQIS. In the circumstances of this matter AQIS ought to have been included as a respondent in the first instance.

[32] I am satisfied that the delay is reasonably explained by the complexity of the issues relating to Mr Orlikowski's employment.

[33] Other action taken by the applicant to contest the termination: The original application against IPA was lodged within the prescribed time. AQIS was identified in the application as the entity at which Mr Orlikowski spent his four and a half years of employment. IPA was notified of the application by notice dated 2 February 2009. There is no evidence that AQIS was formally notified of the claim against it until it was served with the amendment application in early March 2009. The claim however, was raised during conciliation on 18 February 2009 and it is reasonable to infer that AQIS was on notice from at least that time.

[34] I am satisfied that Mr Orlikowski has taken all reasonable steps to contest the termination of his employment. To the extent that AQIS is found to be the employer he has taken reasonable steps to contest its actions in bringing the engagement with him to an end.

[35] Prejudice to the respondent: Both IPA and AQIS contend they will be prejudiced by an order allowing the application to proceed. It was submitted the application is futile and would place unnecessary expense upon them in defending the claim. Both IPA and AQIS submitted the doctrine of joint employment is unknown to Australian law. IPA contends it was Mr Orlikowski's employer from 1 September 2008 when it commenced providing labour hire services to AQIS, Mr Orlikowski was a casual employee and that at the time of termination he had worked for IPA for only four months. Therefore, he had not completed the qualifying period and is, by definition, excluded from the jurisdiction. It was submitted in the event that Mr Orlikowski succeeded regarding his contentions about joint employment the Commission would not have jurisdiction to deal with the matter because his employment is casual and outside the jurisdiction.

[36] AQIS contended that Mr Orlikowski was not its employee and could not be as a matter of law. AQIS initially engaged Mr Orlikowski through Workforce, a labour hire business. AQIS' contract with Workforce to provide labour services expired on 31 July 2008 and on 1 August 2008 AQIS contracted with IPA to provide labour. AQIS further contended that an employment relationship between it and Mr Orlikowski could only exist under the Public Service Act 1999 (PS Act). A person can only be engaged under the PS Act where the Secretary of the Department or his delegate exercises the power conferred by s.22 of the PS Act to engage the person as an ongoing or non-ongoing employee. AQIS contented that as this did not occur AQIS was not the employer. AQIS relied upon the decisions of Director-General of Education (NSW) v Suttling [11] and Re Australian Industrial Relations Commission and Arends; ex parte Commonwealth of Australia.[12]

[37] It is not appropriate to deal with the merits of the substantive matter at this juncture. It is necessary however, to consider if the positions advanced by IPA and AQIS are arguable. The substance of submissions made by IPA and AQIS are that Mr Orlikowski's application is hopeless and should be dismissed summarily. If the issue of joint employment is put to one side the submissions of IPA and AQIS can be dealt with as follows. IPA's main point is that to the extent that IPA is the employer either independently of or jointly with AQIS the application is incompetent because Mr Orlikowski was a casual employee who had not completed the prescribed qualifying period.

[38] It is not entirely clear on the material before me that Mr Orlikowski was a casual employee or that he had not completed a required qualifying period of employment. The relevant qualifying period is six months. [13] Mr Orlikowski worked full-time hours. Apart from the fact that he was called a casual employee there is no evidence to support the contention he was a casual employee. On 10 August 2008 Mr Orlikowski signed an employment agreement which is purported to have been an acceptance of the terms and conditions of employment that would apply to any future offers of employment.[14] Meanwhile he continued performing work for AQIS. It is stated that he commenced work for IPA on 1 September 2008 and signed an employment agreement on 3 September 2008. There is no explanation however, about the arrangement that was in place for Mr Orlikowski's employment or work during the period between the end of the Workforce contract on 31 July 2008 and the commencement of the IPA contract on 1 September 2009. It cannot be inferred from the facts as they presently appear that Mr Orlikowski was a casual employee or that he had not completed the qualifying period. I am satisfied that it is arguable that to the extent that IPA was Mr Orlikowski's employer he was not a casual and that, based on the agreement he signed on 10 August 2009, he had completed the qualifying period of employment.

[39] AQIS contended Mr Olikowoski is not an employee of AQIS because the Agency Head did not engage him in the manner required by ss.6 and 22 of the PS Act. Section 6 of the PS Act provides that all persons engaged on behalf of the Commonwealth as an employee must be engaged under the PS Act or under the authority of another Act. Section 22 of the PS Act provides that an Agency Head may engage employees in the Australian Public Service as either ongoing or non-ongoing employees. Agency Head means Secretary of a Department or Head of an Executive Agency or Statutory Agency. Section 78 of the PS Act provides that an agency head may delegate their powers or functions under the PS Act to another person.

[40] Support for AQIS' proposition is found in the following passage from the judgment of Brennan J in Suttling [15]:

"Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute….If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service." [16]

Although Suttling concerned a temporary appointment under a State statute the principles are applicable here.

[41] AQIS is part of the Commonwealth Department of Agriculture, Fisheries and Forestry. The critical issue is the authority and terms by which Mr Orlikowski was engaged in the service of AQIS. It ostensibly had authority to engage Mr Orlikowski as an employee. AQIS submitted that it contracted IPA to provide labour hire services at certain docks. There is no evidence of the contract or arrangement between AQIS and IPA by which AQIS engaged the services of Mr Orlikowski. AQIS did not identify the source or scope of its power or authority to contract with IPA for labour hire services. Its submissions presume that neither the arrangement with IPA nor the power or authority by which it was made could be construed as authority for the engagement of Mr Orlikowski as a non-ongoing or ongoing employee of AQIS. In my view, it is not safe to make that presumption in the absence of relevant evidence.

[42] It is necessary to consider IPA and AQIS' contentions that joint employment is unknown to Australian law. The facts in this case suggest the arrangement between IPA and AQIS may have been one of "payrolling". IPA's only contact with Mr Orlikowski was through recruitment and payslips. The concept of joint employment is generally accepted in the United States of America. While labour hire services facilitate flexibility the process has the potential to undermine collective bargaining, occupational health and safety, vicarious liability, accountability, job security and workplace harmony. There is an increasing incidence in the use of labour hire providers in Australia and it presents significant issues in termination of employment matters. First and foremost the issue normally involves discernment of which of the putative or potential employers is the actual employer. The fundamental question is whether two, otherwise unrelated, legal entities share or co-determine those matters governing essential terms and conditions of employment which depend on the control one employer exercises, or potentially exercises, over the labour relations policy of another. [17] If not, it is necessary to determine who the employer is and who is responsible for the termination of employment.

[43] In 2002 a Full Bench of the Commission noted that there had been no definitive ruling by a court on the doctrine of joint employment in Australia. [18] This remains the case, although the doctrine has gained some acceptance in the Australian Industrial Relations Commission,[19] and in the Western Australian[20] and New South Wales[21] Industrial Relations Commissions. Whether or not there is acceptance of the doctrine of joint employment in Australia provides no immediate relief however for either of the parties potentially liable in this case, in light of the conclusions I have reached.

[44] Allowing an extension of time in which to add AQIS as a respondent undoubtedly puts both IPA and AQIS to some expense. It cannot be said however, that it will be an unnecessary expense so long as it remains uncertain as to whether either one or both of the parties are liable to Mr Orlikowski for the termination of his employment. This issue can only be resolved by allowing AQIS to be added as a respondent to the application.

[45] Consideration of fairness between the applicant and other persons in a like position: No comparative situation was advance and none is immediately obvious.

[46] I am not satisfied that Mr Orlikowski was a casual employee at any relevant time. He was an employee of either IPA or AQIS; or both of them. In the absence of any clear evidence about Mr Orlikowski's employment status in the transitional period of the change of the labour hire service provider it is arguable that IPA or AQIS; or both of them were the employer in that period. I am satisfied that AQIS is a necessary party to resolve the issue of liability for the termination of Mr Orlikowski's employment. It ought to have been added as a respondent party to Mr Orlikowski's application for relief in respect of the termination of his employment. I grant leave for Mr Orlikowski to lodge his amended application out of time. I also grant the application for an order that AQIS be added as a party respondent to Mr Orlikowski's application for relief in respect of the termination of his employment. I will make an order to that effect. The matter will be listed for directions in due course.

G McKeown, of counsel, instructed by K Gibson of Gibsons Solicitors Pty Ltd for J Orlikowski.

C Fitzgibbon, of counsel, for IPA Personnel Pty Ltd.

P Vane-Tempest, of counsel, for the Commonwealth represented by AQIS.

[1] , Section.111(o) Pre-reform Act.

[2] [1960] VLR 247.

[3] Birtles v Commonwealth [1960] VLR 247 at 250.

[4] Amon v Taphael Tuck & Sons [1956] 1 QB 357.

[5] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[6] Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466.

[7] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598.

[8] 21 See Harley, Geoff, "Joint Employment" (2002-2003) 8 (9) Employment Law Bulletin 84, 85.

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