The recent FWC Full Bench decision in Creative Every Day Pty Ltd t/as Sameway Magazine v Ms Yin Fun Leung1 on 9 August 2019, confirmed the Commission’s powers to amend unfair dismissal applications and award costs on its own motion, without any application by any party. The decision confirms FWC’s broad powers and not be limited by strict technicalities.
The appeal in Creative Every Day Pty Ltd t/as Sameway Magazine v Ms Yin Fun Leung, heard a challenge by the employer (“Creative Every Day”) against Commissioner Wilson’s decision on 3 May 2019 dismissing the employer’s jurisdictional objections against Ms Leung’s unfair dismissal application.
Ms Leung, named the incorrect employer in her unfair dismissal application. Commissioner Wilson held that Ms Leung made an honest mistake when completing her application and under s.586(b) of the Fair Work Act 2009 (Cth), the Commission could, in its discretion, correct or amend the Employer’s identification (if the evidence weighs in favour of the amendment).
Commissioner Wilson found that Ms Leung’s employment transferred to Creative Everyday following a transfer of business. Creative Every Day objected to the amendment arguing that Ms Leung had not actually made an application to amend her application. While Ms Leung did not formally apply to amend her application, the Commissioner found that she requested the correction in her written submissions after her mistake was discovered, when she wrote – “I understand my employer at the end of my employment was Creative Every Day, and if that is correct, I wish to make my application against that employer.”2
Under s.586(a) of the Act, Commissioner Wilson amended Ms Leung’s application based on a number of factors including her genuine confusion; the absence of any formal employment contract; her request for an amendment was made as soon as she became aware of the employer’s position; her limited English skills; her lack of employment law knowledge and the Commission’s need to perform “its functions and exercise its power in a manner that is quick, informal, avoiding unnecessary technicalities and takes into account equity, good conscience and the merits (see s 577(b) and 578(b)).”3 Creative Every Day appealed the decision.
On appeal, the Full Bench considered Commissioner Wilson’s decision that “she ( the employee) should be denied the opportunity to seek an amendment because she did not say words to that effect that she wished to make an application to change the name of the Respondent in the course of the hearing would be somewhat antithetical to the provisions of ss.577(b) and 578(b). It would be a highly technical outcome as well as lacking in equity and good conscience.”4
Whilst upholding the Commissioner’s finding that Ms Leung had made application to amend/change the identity of her employer, the Bench also found that the Commission can in any event, amend/change an application naming the correct employer, on its own motion in the exercise of its discretion,5 provided parties are afforded a chance to make submissions.
Also, the Full Bench held in appropriate cases, the Commission could award costs against a party on its own motion under s. 611.
In its need to function in a manner which is quick, informal, avoid unnecessary technicalities and consider equity, good conscience and the merits under the FW Act, the Commission has shown it has broad powers.
Litigants should not take for granted that the Commission will always exercise its discretion in their favour to change/amend any unfair dismissal, general protection, anti-bullying or Award/Agreement application and should obtain prompt legal advice about their circumstances to avoid incurring any unnecessary legal costs in their proceedings.
-  FWCFB 5416, 9 August 2019, Justice Ross (President), Dep President Millhouse and Commissioner Lee.
-  FWC 34022, at para 24-25.
- Ibid, para 38.
- Ibid, para 40.
-  FWCFB 5416, para 27.