Usually when one party is taking legal proceedings against another the respondent entity needs to be carefully identified. It can be fatal to the proceedings if the wrong entity is sued. This stands to reason given the adverse consequences that can flow from litigation. There is usually a process by which a wrongly sued party can extricate itself from the burden of responding to the substance of the claim.
In the Fair Work Commission (FWC), however, in general protections dismissal disputes under section 365 of the Fair Work Act 2009 (Cth) (FWA), an applicant can seemingly identify any party they choose and the FWC will continue to deal with the application, even if the respondent nominated by the applicant had nothing to do with the employment.
This proposition is supported by the decision of the Full Bench of the Fair Work Commission in Civmec Construction & Engineering Pty Ltd v Joel Minchin [2025] FWCFB 2. This was an appeal from a decision of Deputy President Beaumont.
The contention of the respondent, Civmec Construction & Engineering Pty Ltd (Civmec) was that it was not, at any time, the employer of the applicant, Mr Minchin, and he was instead employed by Multidiscipline Solutions Pty Ltd (MSP),a wholly owned subsidiary of Civmec. Civmec submitted that as it had not, and could not have, dismissed Mr Minchin for the purposes of section 365 of the Act (as it was not the employer), the Commission lacked jurisdiction to deal with the application and it should therefore be dismissed.
While in this matter there was a dispute as to whether there was a dismissal at all (as Mr Minchin had resigned), the only issue to be determined by the FWC in this particular case was the jurisdictional objection from Civmec, specifically that there was no dismissal by the respondent because Civmec was not Mr Minchin’s employer.
The FWC, in deciding to grant permission to appeal to Civmec, observed (at 17):
“The present appeal raises a novel question concerning the jurisdiction of the Commission to deal with an application under s 365 of the Act in circumstances where an applicant contends that they have been dismissed in contravention of Part 3 – 1 of the Act, but the application is brought against a party that neither employed nor dismissed them or in circumstances in which there is a dispute as to the identity of the employer. The appeal raises a question concerning the proper construction of s 365 of the Act and has potential implications as to when the jurisdiction of the Commission has been properly invoked under that section which may arise in other cases. For these reasons, we are satisfied that it is in the public interest to grant permission to appeal.”
The FWC commenced its analysis of the merits of the appeal by examining the role of the FWC in general protections dismissal disputes. The Full Bench noted (at 21):
“Where a person makes an application under s 365 of the Act, the Commission must deal with the dispute under s 368. The Commission may deal with the dispute by mediation or conciliation, or by making a recommendation or expressing an opinion. If the dispute is not able to be resolved by conciliation, the Commission must issue a certificate under s 368(3). A certificate issued under that subsection is, unless the application includes an application for an interim injunction, a precondition to the commencement of a general protections court application or alternatively, and if the parties agree, to the Commission dealing with the dispute by arbitration.” (Footnotes omitted)
The conclusion reached by the Full Bench of the FWC was (at 30):
“Section 365 does not itself require that an applicant name his or her employer as a respondent to the application in order to make a valid application and we are unable to discern from the broader context of the provisions in Subdivision A of Division 8 of Part 3 – 1 any reason why that requirement should be imposed.”
In reaching this conclusion the FWC cited the case of Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 in which it was held that where an applicant identifies the wrong employer, he or she can remedy it by way of later amendment, even at the stage of court proceedings commenced after the issuing of the certificate by the FWC (where attempts to resolve the dispute by the FWC have been unsuccessful). The same conclusion was reached in an earlier decision, Rutherford v Hausner [2011] FMCA 1033.
As the Full Bench noted (at 35):
“Based on the decisions in Visionstream and Rutherford v Hausner, if Mr Minchin is successful in obtaining a certificate from a member of the Commission under s 368(3), it would likely be possible for him to apply to substitute MSP for Civmec as the respondent, or add MSP as an additional respondent, in any subsequent court proceedings. If it is possible to substitute the correct employer at a later stage in the litigation, the identification of the correct employer as the respondent cannot represent a jurisdictional prerequisite to an initial application under s 365 of the Act. If naming the employer was a necessary requirement for a valid application to be made under s 365, the defect could not be remedied by later amendment or substitution.”
The obvious remedy, and one commonly adopted in practice, is for the applicant to amend the application so the respondent is the correct employer. A key aspect of this case that makes it noteworthy is the refusal of the applicant to take this step.
As observed by the Full Bench (at 36):
“Admittedly, this is not a case in which Mr Minchin believes or accepts that he has made a mistake in identifying Civmec as the respondent to the application. Mr Minchin fervently believes that Civmec is his employer notwithstanding the finding of the Deputy President that he is wrong in that respect. However, in our opinion, the same conclusion must follow. If it is not a jurisdictional prerequisite for an applicant to identify the correct employer in cases where an error has been made, it cannot be a prerequisite where the applicant’s choice is deliberate albeit mistaken.”
So, even after the FWC has made a finding the applicant has the wrong employer, the applicant can refuse to amend the applicant to name the correct employer, and the FWC must continue to exercise its jurisdiction. The respondent who did not employ the applicant is compelled to continue to deal with the matter in the FWC, while the actual employer may potentially not be part of the process.
The FWC was alive to this practical difficulty, addressing it this way (at 41):
“We are conscious that some practical difficulties might be encountered in the Commission fulfilling its function under s 368 of the Act to deal with the dispute other than by arbitration if an applicant fails or refuses to identify his or her employer as a respondent to an application under s 365. However, the Commission has a broad discretion as to the manner in which it deals with an application under s 365 when exercising its powers under s 368. In Kirkham, for example, the Full Bench explained:
Section 368(1) is non-prescriptive as to the means by which the Commission may attempt to resolve the dispute, and s 595(2) provides that the Commission may deal with a dispute (other than by arbitration) ‘as it considers appropriate’, including by mediation, conciliation, arbitration, making a recommendation or expressing an opinion. If the Commission chooses to conduct a conference, it may under s 592(1) direct a person to attend a conference. Although it is the usual practice of the Commission to do so, it is not required that a conference be conducted and, if a conference is conducted, it is a matter for the Commission as to who may be invited or required to attend that conference, regardless of who might be identified as respondents in the applicant’s application.”
Of course, the ability of the FWC to do this may depend on the cooperation of the Applicant in providing information that leads to the identity of the correct employer, and the processes of the FWC itself where the issue of mistaken or erroneous employer identity may not arise until the conciliation (usually the one and only conciliation), especially if nominating the wrong employer as respondent cannot form the basis of a jurisdictional objection or is not otherwise a matter to be addressed before the conciliation.
In examining the practical consequences of its conclusion, the FWC continued (at 42):
“The manner in which the Commission deals with a dismissal dispute is likely to be affected by the circumstances of a particular case, including the parties named in an application. However, the Commission is empowered to address circumstances such as those presented by Mr Minchin’s insistence that Civmec was his employer. Any practical difficulties that might arise do not provide a justification for construing s 365 as imposing additional jurisdictional hurdles that are not dictated by the text of the section.”
As reflected by the passage above, the legislative scheme prioritises the right of the applicant to pursue his or her claim over a need to identify the correct employer, even in a case such as this where the FWC has held the applicant has nominated the wrong employer as respondent but the applicant will still not amend it.
Consistent with this interpretation of the legislative scheme adopted by the FWC, the current FWC form F8A (Response to a general protections application involving dismissal) seeks any needed clarification of the details of “the Respondent” as nominated by the applicant but does not specifically ask whether the respondent nominated by the applicant was the employer of the applicant. As this case concludes, it is not a jurisdictional objection, so is not part of that section of the form. The wrongly named respondent could name the correct employer in answer to the open questions in the form (if indeed the respondent the applicant has chosen to nominate is aware of the correct employing entity).
Some Observations
A few observations about this decision and its implications:
- As noted in paragraph 30 of the judgment, “Section 365 does not itself require than an applicant name his or her employer as a respondent to the application in order to make a valid application…”. The corollary of this is that the identity of the named respondent is immaterial – it could be anyone. Hypothetically, this could lead to an absurd scenario in which an applicant names a random party completely unrelated to the employment as a respondent and, provided the applicant was dismissed and alleges that dismissal occurs in contravention of Part 3 – 1 of the FWA (General Protections), then the FWC is empowered to proceed to deal with the dispute on that basis with a random respondent unconnected to the employment. It is bizarre, in practice unlikely, but nevertheless theoretically possible.
- A more likely scenario is one in which there is a genuine belief or mistake by the applicant as to the employer, and the actual employing entity is then potentially denied the opportunity to fully participate in, and therefore have the benefit of, the FWC process to seek to resolve the dispute before it proceeds to court. Related to this, it could also serve to deny the employer an ability to raise and be heard on a jurisdictional objection to the application (such as the application being out of time where there is contention as to the effective date employment ceased or whether there was a termination at the initiative of the employer) where a dispute before the FWC proceeds to the certificate (which can occur relatively quickly) without reference to the employer. The involvement of a non-respondent employer in the process is at the discretion of the FWC member rather than as of right in a matter that could adversely affect its interests.
- Section 369 of the FWA requires the FWC to be satisfied all reasonable attempts to resolve the dispute have been, or are likely to be unsuccessful, before it issues a certificate to enable the applicant to take the matter to court. These are disputes arising from dismissal. The only party that can dismiss the applicant is the employer. It is, with respect, surely the case that all reasonable attempts to resolve the dispute require the precise identification and involvement of the employer in the FWC dispute resolution process.
- Finally, in fairness, the FWC in practice is usually attuned to navigating the challenges of an applicant naming a respondent that is not the employer and ensuring the functions of the FWC are effectively deployed to secure the involvement of the employer in attempting to resolve the dispute. That said, this case (and the scheme of the FWA) gives rise to an anomaly that should be addressed to formalise the right of the employer to be involved and heard in the FWC process.
