Unfair dismissal cases and the identity of the employer

Surprisingly it is quite common in an unfair dismissal case for there to be a dispute between the parties as to the identity of the employer. This can be for various reasons including that the employee cannot figure out the true identity of an employer in a complex corporate set up or even (believe it or not) that the representatives of the employer are confused about the issue. This is hoiw it is sorted.

“In issuing the directions, I have been guided by the comments of the Full Bench of the Australian Industrial Relations Commission in Re Advanced Australian Workplace Solutions Pty Ltd 1 which said:

“[94] Although not the subject of any submission, we say something about the procedure to be followed when a threshold issue arises, as in this case, as to whether the respondent named in a s.170CE application was the employer of the applicant. In our view, in such cases, the applicant should go first and adduce evidence directed at establishing that he or she was employed by the respondent. The respondent should then be invited to call evidence on the issue. It will be a matter for the respondent to decide whether or not to call evidence. The respondent may choose to call no evidence and submit that the applicant has failed to establish that the respondent was the employer.

[95] We express this view because we think that establishing that the respondent is the employer is an essential element in an applicant’s case as establishing that he or she was employed by the respondent. The respondent should then be invited to call evidence on the issue. It will be a matter for the respondent to decide whether or not to call evidence. The respondent may choose to call no evidence and submit that the applicant has failed to establish that the respondent was the employer.”

Extract from Hong v Baiada (2022) FWC 1008 delivered 3 May 2022 per Matheson C