This case has some difficulty with the jurisdiction. Whether or not it is the labor hire company or the host company that should be made responsible for the unfair dismissal filed under section 394 of the Fair Work Act (2009) (‘the Act’). Labor hire is known as the agency whereas the host company is the company that hires the worker. As to who is responsible for the dismissal arising from employment is a question many consider a tough decision.

On the 12th of April 2013, Mario was hired by ABC Company (‘the agency’) to work with Top Notch Pty Ltd. working as Machine Operator (‘the host company’).  He has been working for five years, but one day he was told not to report any more. This is due to alleged argument with his leading hand over work schedule. Mario is asking for time off due to his visitor coming from overseas and he has to meet him at the airport.  On 12 April 2018, Mario was sacked from work. Immediately within 21 days from his dismissal, he lodged the complaint of unfair dismissal against Top Notch Pty Ltd. 

Top Notch Pty Ltd responded claiming that Mario was not its employee and further, he was not dismissed. The matter was called for conciliation or conference and following that, was advised by the Conciliator. He then discontinued and signed the required form and sent it to FWC.

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But after five months, he realised his mistake. He wanted to re-open it.  The applicant claimed that he was provided with false and misleading information which caused him to withdraw or discontinue the application. The question now, can he re-open it? Under what provision of the Act is FWC able to allow the re-opening of the case.

Mario conceded that he had no contract with Top Notch Pty Ltd. as his host company. He admitted that ABC Company or the agency was paying him his salary. He was given legal advice that the relevant issue with his work was about the ‘control test’.  The Commissioner has discretionary power to re-open under section 589 of the Act.  However in this matter, the Commission claimed that to re-open it is not the function of the applicant with his unfair dismissal case. The fact is that he dealt it with finality to discontinue. 

In essence, the applicant was asking for his notice of discontinuance to be set aside for him to pursue his unfair dismissal case. In a full bench decision of the FWC in Caruso v Pittwater RSL Club Limited, there were instances where the Court and not the Commission could re-open the discontinued case. In Caruso, there was allegation of mistake and under duress and in such instance the court is needed to decide on it.

In conclusion, the Commission declined to re-open it due to unreasonable delay and the prospect of success against the host company not being an employer in the contract were jurisdictional hurdles and the Commission was inclined to keep the application discontinued (Daniel Gonzalez v Heathgate Pty Ltd U2018/3860 17/12/18).

(For comments or feedback, email cbulos@imemlawyers.com.au)

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