Naming Wrong Employer Invalidates Fair Work Claim
The recent case of Lili Sinden v HDR Inc. T/A HDR [2018] FWC 5643 provides a reminder that when bringing a claim against employers, any would be applicant must ensure they name the correct entity in their application.
The applicant in this case, Ms Lili Sinden a HR manager, attempted to file a general protections claim under s 365 of the Fair Work Act 2009 against her former employer. Unfortunately for Ms Sinden, she named the US parent company, HDR Inc, as the respondent in her application and not her actual employer HDR Pty Limited. In response the employer raised a jurisdictional objection to Ms Sinden’s claim. Ms Sinden then sought to have the application amended under s 586 of the Act.
Ms Sinden asserted that the Commission could be satisfied that naming HDR Inc was a genuine error as her application correctly identified the trading name, ABN and address of her employer HDR Pty Limited. Ms Sinden further submitted that a number of documents surrounding her employment and termination simply referred to her employer as “HDR” as well as her email signature listing her as an employee of “HDR” and making several references to HDR Inc.
The respondent opposed claiming that this mis-naming was not a simple error, instead contending it was a conscious decision to elicit a strategic benefit in the application. In arguing this point the employer noted several factors including: the applicant’s position as the most senior HR manager for HDR Pty Limited, over 17 years of experience in human resources, frequent contact with the HR Manager for the US, and her regular work included drafting and distributing documents specifying the name HDR Pty Limited.
Having canvassed the evidence, Deputy President Kovacic was not prepared to amend the application to name the correct entity, concluding that it was implausible for Ms Sinden to have made such an error.
