Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application to amend to change the name of the respondent - whether power exists under s.586 - whether change in this case creating a new application - principles discussed - amendment within power and appropriate in the circumstances - application amended and to be listed for hearing.

[1] Mr Justin Simounds has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal. The party named as the respondent in the originating application was "Streamline Plumbing" and the trading name repeated that name. The application cited the ABN for the respondent as being ABN 756 024 432 56.

[2] A Form F3 response to the application was provided and this stated that the employer of the applicant was Aus Water & Gas Pty Ltd, with the same ABN as that set out for the respondent party in the original application.

[3] Following the conciliation of the matter, which did not resolve, the application was assigned to this arm of the Commission to hear and determine. Following a directions conference, directions were issued on 3 July 2017 for mutual discovery and the filing of submissions. The matter was listed for hearing of the substantive application on 22 August 2017. The applicant filed its materials in accordance with the directions on 1 August 2017.

[4] The respondent was due to file its submissions on 15 August 2017 but sought an extension to 18 August 2017. The matter was then listed for a further directions conference on 18 August 2017. At that conference, the respondent's newly appointed legal representative indicated that the applicant had named the incorrect respondent in his application and the respondent would therefore be seeking that the unfair dismissal application be dismissed.

[5] Mr Simounds has then made an application to amend the s.394 application to cite Aus Water & Gas Pty Ltd as the correct respondent and this course of action has been opposed by an entity, Streamline Plumbing (SA) Pty Ltd, and by Aus Water & Gas Pty Ltd. I will, only for convenience, describe these as the respondent parties. The true nature of the actual respondent party to the s.394 application is in part the subject of this decision.

[6] It is common ground that Ms Simounds was employed by Aus Water & Gas Pty Ltd.

[7] The application to amend was heard by the Commission on 22 August 2017. Evidence was provided by way of affidavits of Mr Simounds[1] and Mr Watson,[2] who is one of two Directors of Aus Water & Gas Pty Ltd and is the Operations Manager with Streamline Plumbing (SA) Pty Ltd. This evidence was tendered without the need for cross-examination.

[8] Mr Simounds was represented, with permission, by Ms Harrison of WK Lawyers, and contends that the Commission has the power to grant the amendment to the application under s.586 of the FW Act. That is, the Commission has the power to correct or amend an application on any terms that it considers appropriate and to do so in this case would be consistent with the relevant statutory objects and an appropriate exercise of discretion.

[9] In support of that contention, it was submitted on behalf of Mr Simounds that:

• The applicant, who is a roof plumber by trade, is inexperienced in these matters and sought no legal representation or assistance in filing the originating application and incorrectly identified the name of the respondent when completing the originating application (the Form F2);

• The Form F2 incorrectly specified that the legal name and trading name of the employer was "Streamline Plumbing". It did not state that his employer was "Streamline Plumbing Pty Ltd" or "Streamline Plumbing (SA) Pty Ltd".

• The applicant mistakenly believed that he had correctly named his employer, as they called themselves Streamline Plumbing in the applicant's day to day dealings at work.

• The Form F2 correctly identified the ABN number of Aus Water & Gas Pty Ltd.

• A Form F3 - Employer Response was filed by Mr Derrick Watson. Mr Watson is one of two Directors of Aus Water & Gas Pty Ltd.

• The Form F3 identified Aus Water & Gas Pty Ltd as the applicant's employer, with the relevant ABN and agreed that it had terminated the applicant's employment.

• Mr Watson then participated in a conciliation conference and in the subsequent directions conferences before the Commission and at no time until 17 August 2017 was any jurisdictional concern raised regarding the naming of the respondent.

[10] In relation to the availability of s.586, the applicant contends that its use in circumstances such as in this case would be consistent with terms of the FW Act and in line with the approach adopted by a Full Bench and numerous single Member decisions.

[11] Further, the applicant contends that he would suffer significant prejudice should the application to amend not be granted, including as a result of the legal expenses incurred to date and the consequences of having to file a new application, out of time, against Aus Water & Gas Pty Ltd. Whilst an extension of time could be sought, exceptional circumstances would need to be established. The applicant also contends that there would be very little if any prejudice to Aus Water & Gas Pty Ltd.

[12] Streamline Plumbing (SA) Pty Ltd and Aus Water & Gas Pty Ltd were both represented by Mr Manuel (of counsel) and contend as follows:

• It is accepted by the applicant, that the named respondent (Streamline) is not the employer and Aus Water and Gas Pty Ltd is conceded to be the actual employer. These are distinct legal entities and there is no supporting material to indicate that they were acting as a partnership or some other legal structure. The fact that the applicant does not appreciate the legal distinction is irrelevant to the argument. It may, in part, explain his failure to correctly identify the employer, but it does not provide jurisdiction in the Commission.
• The consequence of the concession as to the correct identity of the employer is that there is no valid application before the Commission as such an application can only be validly made by a former employee against a former employer. The named respondent does not fall within this categorisation.
• This leads to the following consequences, namely:

  • the purported s.394 application is invalid and outside the jurisdiction of the Commission; and

  • the purported application cannot be merely varied pursuant to s.586 of the FW Act.

[13] In terms of the powers under s.586 of the FW Act, the respondent parties contend that these are not available in this case as they are procedural, and rely upon there being a substantive jurisdictional underpinning before they can be exercised. There is no such jurisdiction. That is, the purpose of s.586 is to enable the Commission to avoid technical defects in procedure. It is not intended to change or create the fundamental jurisdiction of a claim. Identifying an organisation as an employer when it is not, is a matter of jurisdiction. The variation application does not merely seek to clarify or substitute the name of the employer, but rather to proceed against a different legal entity.

[14] In relation to the other considerations bearing upon jurisdiction in this matter, the respondent parties contend that:

• The applicant seeks to support his mistake by reference to informal discussions, internal documentation after the formation of the contract and day-to-day conversations. This is not the basis for the interpretation of a contract, or the identification of the parties.[3]
• Likewise, the assertion that the failure to include the suffix "Pty Ltd" is a basis for the application is misguided and misplaced. There is also an attempt to have regard to other relevant considerations such as costs incurred. This has no place in an application regarding jurisdiction.

[15] In relation to discretion, which the respondent parties contend does not arise in this case, they submit that there is no basis for the Commission to exercise its discretion. That is:

• The applicant has known at all times the true identity of his employer. Despite his attempt to downplay the significance of the payslips, the fact is that he received one every fortnight with the correct name of his employer.

• The correct name of Mr Simounds' employer is also apparent from dozens of payslips, group certificates, taxation documentation (including an Employment Declaration) and Centrelink documents. The identification of the employer was not an error on the part of the applicant, but rather a choice.

• There has been no impediment upon the applicant from seeking to correct the fundamental error as to the identity of the employer from the time of his dismissal. This would have required an initiating application against the true employer. Instead, he has "stubbornly continued to insist even when it is apparent that he knew it was incorrect" that the named respondent was the employer.

• The decision to make the current F2 application was a choice of the applicant. He was not misled, and had all relevant material to enable a valid application against the employer. He decided, for his own reasons not to do so.

• Any prejudice which arises from those actions is a result of the applicant's own actions.

[16] Section 586 of the FW Act provides as follows:

"586 Correcting and amending applications and documents etc

(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."

[17] The operation of this provision was discussed by the Full Bench in Djula v Centurion Transport Company Pty Ltd[4] (Djula). Djula dealt with an appeal of a decision where the applicant in the original hearing of an unfair dismissal matter unsuccessfully sought to change the name of the respondent from Centurion Transport Co. Pty Ltd to CFC Consolidated Pty Ltd as trustee for CFC Employment Trust. The Full Bench ultimately allowed the appeal and amended the original application. Without attempting to set out all of the implications of that decision, the following relevant principles emerge:

• Section 586 of the FW Act provides a power to correct or amend an application, or waive an irregularity in the form or manner in which an application is made, but is not a power to revoke or set aside an application;[5]

• Allowing the amendment of the name of a respondent in an application does not have the effect or revoking or setting aside the application or creating a new application if the application would have remained the same; and
• Where properly engaged, s.586 involves a discretion that should be considered in the specific circumstances of each case.

[18] The following facts of direct relevance to this matter arise from the evidence:

• Mr Simounds was employed and dismissed by Aus Water & Gas Pty Ltd;

• The identity of the employer was disclosed on a number of formal documents associated with his employment including pay slips, taxation documents and other paperwork;

• Various business documents used in conjunction with Mr Simounds' employment also refer to "Streamline" or "Streamline Plumbing";

• Mr Simounds understood that there were divisions of Aus Water and Gas Pty Ltd and that he was in the Streamline Plumbing division;

• Mr Watson is one of two Directors of Aus Water & Gas Pty Ltd and is the Operations Manager with Streamline Plumbing (SA) Pty Ltd;

• The party named as the respondent in the originating application was "Streamline Plumbing" trading as "Streamline Plumbing" and the ABN cited for the respondent was ABN 756 024 432 56, which is the ABN of Aus Water and Gas Pty Ltd;

• Mr Watson provided a Form F3 response confirming the correct name of the employer and with the same ABN as cited in the F2 application;

• Mr Watson participated on behalf of the "respondent" in the subsequent proceedings before the Commission including in a directions conference where directions were made; and

• Documents were discovered on behalf of the respondent in compliance with those directions however no materials were filed as required in the immediate lead up to the scheduled hearing.

[19] Although the respondent parties have contended that the originating application, in effect, cited "Streamline Plumbing (SA) Pty Ltd" as the respondent, this is not the case. The reference was to "Streamline Plumbing" with an ABN that belonged to Aus Water and Gas Pty Ltd. At most, the identity of the respondent employer was unclear. It is apparent that Mr Watson accepted that the respondent was Aus Water and Gas Pty Ltd and he responded confirming that fact. In any event, the naming of "Streamline" on its own did not refer to any particular legal entity but the ABN cited was a clear reference to a particular and known legal entity, with that ABN belonging to Aus Water and Gas Pty Ltd.

[20] On that basis, it cannot be said that the application commenced against a new and different employer. The amendment application does not involve revoking or setting aside the originating application. Accordingly, the powers available under s.586 of the FW Act extend to permit an amendment to the application in the circumstances of this matter.

[21] In terms of discretion, the considerations heavily favour the granting of the application. If not granted, there is considerable prejudice to Mr Simounds, given the history of this matter and the nature of the unfair dismissal jurisdiction, and little if any prejudice to Aus Water and Gas Pty Ltd. That entity has, in effect, already been participating in the proceedings to date through Mr Watson's participation and cannot claim not to be engaged given the Form F3 response and subsequent conduct.

[22] The exercise of the discretion in this case is also consistent with the statutory charter for this jurisdiction including the objects in s.578 of the FW Act.

1. Conclusions and further progress of the matter

[23] I have found that the Commission has the power to grant the amendment application and that it is appropriate to do.

[24] Accordingly, the s.394 application in this matter is amended to cite Aus Water and Gas Pty Ltd as the respondent party.

[25] Further directions will be issued requiring the respondent to supply its materials in the lead up to a hearing that will be scheduled before a Member of the Commission. A notice of listing will also be provided to confirm those arrangements.

L Harrison, of WK Lawyers, with permission, for Mr Simounds.

R Manuel (of counsel), with permission, for Streamline Plumbing (SA) Pty Ltd and Aus Water & Gas Pty Ltd.

[3] Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.

[4] [2015] FWCFB 2371.

[5] Relying upon Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530.

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