FURTHER DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Chadwick
v
Neoindy Pty Ltd
(U2017/6107)

COMMISSIONER WILSON

MELBOURNE, 18 MARCH 2019

Application varying or revoking a Fair Work Commission decision – s.603(2) Fair Work Act 2009 - application to amend Respondent..

[1] On 7 June 2017, Mr Stuart Chadwick made an unfair dismissal application under s.394 of the Fair Work Act 2009. The application named the Respondent as Amber Traffic Design Group Pty Ltd T/A Amber Traffic Management.

[2] The application initially was the subject of an out of time hearing before Commissioner Ryan on 4 September 2017 who found there to be exceptional circumstances warranting an extension of time to Mr Chadwick to file his application on 7 June 2017.

[3] On 10 November 2017 the merits of the application were heard and determined in favour of Mr Chadwick by me, with my reasons for decision issued on 14 November 2017 ([2017] FWC 5930) and the Respondent not providing any submissions nor attending the hearing after numerous attempts to contact them were made.

[4] On 12 February 2019, Mr Chadwick made a further Form F1 application to amend the decision and order issued by me on 14 November 2017 the named Respondent to Neoindy Pty Ltd under either s.603(2) or alternatively s.602 of the Act (Form F1 application).

[5] On 12 February 2019 the Commission directed Mr Chadwick to serve his application on the Respondent, with the Applicant’s representative Mr Rick Catanzariti of DLA Piper confirmed occurred the same day.

[6] On 18 February 2019, directions for filing as well as the Form F1 application were issued to parties with the Respondent being sent these materials by registered post.

[7] No materials were filed by the Respondent. On 20 February 2019, the registered post documents were returned to the Commission marked “RTS Refused by Customer after Del by Postie 20/2/2019”.

[8] I now consider the application on the materials provided.

[9] Sections 603 of the Act relevantly state:

“603 Varying and revoking the FWC's decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”

[10] The Applicant’s application submits that:

“(a) An ASIC search reveals that the ABN listed within the Applicant's unfair dismissal application, ABN 37 146 785 793, identifies Neoindy Pty Ltd (ACN 146 785 796) (Neoindy). Neoindy was incorporated on 12 October 2010 and Scott Carpenter has been the director and secretary of Neoindy since its conception (see appendix A).

(b) Neoindy is also the registered owner of the business names known as "Amber Traffic Design Group" and "Amber Traffic" (see appendix B).

(d) The Applicant's employer incorrectly represented its identity as "Amber Traffic Design Group Pty Ltd" within:

(i) PAYG payment summary dated 5 July 2017; and

(ii) The Applicant's last payslip dated 24 May 2017,

(e) It is a breach of Section 153 of the Corporations Act 2001 (Cth) for a registered company to incorrectly state its name on a PAYG Payment Summary or a payslip.

(f) It is reasonable for an unrepresented litigant such as the Applicant to name Amber Traffic Design Group Pty Ltd as the relevant Respondent within his unfair dismissal application in reliance on the PAYG Payment Summary and payslip issued to him.

(g) It is notable that the ABN included within the unfair dismissal application is the same ABN as contained within the PAYG Summary and Payslip and identifies Neoindy Pty Ltd. We are instructed that the Applicant did not have a written employment contract, however, given that the entity identified by ABN 73 146 785 793 paid the Applicant for his services, this entity is the Applicant's employer and the proper respondent to be named in the Orders dated 14 October 2017.

…”

[11] The Respondent has not provided any submissions to this application.

[12] I am satisfied that it was genuine error of Mr Chadwick’s to name the Respondent originally as Amber Traffic Design Group Pty Ltd T/A Amber Traffic Management in reliance on his payslips and that his correct employer was in fact Neoindy Pty Ltd (ACN 146 785 796). An ASIC business search confirms that ABN 37 146 785 793 as provided in Mr Chadwick’s payslips identifies Amber Traffic Design Group Pty Ltd T/A Amber Traffic Management as being owned by. It do not find it reasonable that Mr Chadwick as an unrepresented applicant be expected to undertake an ASIC business search on the ABN provided on his payslips in order to confirm his correct employer. Rather I find it is reasonable of Mr Chadwick to have relied on the information provided to him by his employer in his payslips, including the name of his employer.

[13] Accordingly, having considered all the circumstances in this matter, I am satisfied that I should exercise my discretion and grant Mr Chadwick’s application to amend the named respondent in accordance with s.603 of the Act. An amended order with Neoindy Pty Ltd as the Respondent will be issued simultaneously with this decision.

COMMISSIONER

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