Correct employer must be named in legal action

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Correct employer must be named in legal action

The AIRC has confirmed that an employee must name the correct employer in a claim for relief before the matter can proceed.

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The AIRC has confirmed that an employee must name the correct employer in a claim for relief before the matter can proceed.
 
Two closely-related companies were involved when two employees sought reinstatement with one of them, believing it was the actual employer. 
 
Detailed evidence proved otherwise, and the application had to be corrected before the matters could proceed.
 
Facts of the case
 
Two employees, sprinkler fitters, named Firezone Protections Services Pty Ltd (Protection Services) in their applications regarding their employment terminations. 
 
Protection Services disputed the employment relationship and claimed that the employees were employees of Firezone Inspections Services Pty Ltd (Inspection Services). Inspection Services agreed with this contention.
 
Protection Services raised a jurisdictional objection, which had to be determined before the matter could proceed.
 
Conclusions
 
There was no doubt, in the Commissioner’s view, that there existed a relationship between Protection Services and Inspection Services. 
 
However, that relationship did not lead to a conclusion that the applicants were engaged under an employment contract with Protection Services. 
 
Further, the Commissioner was not persuaded that there existed a joint employer relationship to the extent that both Protection Services and Inspection Services engaged the applicants under an employment contract of service.
 
The applicants were under the direction of Inspection Services personnel and a substantial part of their performance of duties was associated with, what appeared to be, service work as provided by Inspection Services. 
 
The directors of Protection Services were active in both businesses, however, that participation arose from a contract arrangement with the administrative company.
 
The Commissioner noted that a decision in these matters proved to be a difficult exercise due in part to the obvious relationship between Protection Services and Inspection Services, and, it would appear, the administrative company.
 
The Commissioner decided that Inspection Services was the employer and the applicants had to pursue their claims for reinstatement against that company.
 
See: S D Newman and J E McGrath re Firezone Protection Services Pty Ltd – AIRC (Larkin ) - PR927180 - 29 January 2003.
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