1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Manoj Chandra Ramachandran Nair
v
PPG Industries Australia Pty Limited
(C2023/7765)
DEPUTY PRESIDENT ROBERTS SYDNEY, 9 APRIL 2024
Application to deal with contraventions involving dismissal
[1] Mr Manoj Nair (Applicant) has applied under s.365 of the Fair Work Act 2009 (the Act)
for the Fair Work Commission (the Commission) to deal with a dispute relating to his alleged
dismissal on 5 December 2023. In his original application, the Applicant identified his previous
employer as ‘PPG’.
[2] A response to the application was filed by an entity called PPG Industries Australia Pty
Ltd. I will refer to that entity as PPG or the Respondent.
[3] The response by PPG to the application raised two jurisdictional objections. The first
was that the Applicant was not dismissed by PPG because he was not an employee of that entity
at the time of the dismissal complained of. The second objection was that the application did
not allege that the dismissal was in contravention of Part 3-1, General Protections, of the Act.
[4] After the filing of the application and response, directions were made for the filing of
evidence and written submissions. Documentary material was provided by the parties. Only one
witness statement was provided. This came from the Respondent. The Applicant did not require
the Respondent’s witness for cross-examination and on that basis, I determined that the matter
could be dealt with on the papers.
Legislation
[5] Section 365 of the FW Act provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
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DECISION
AUSTRALIA FairWork Commission
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(b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed in
contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to
deal with the dispute.
[6] In order for the Commission to be able to deal with the dispute under s.368 of the FW
Act it must determine that the Applicant has been dismissed within the meaning of s.365.1 The
Commission must conclude that the relevant dismissal has actually occurred as a matter of
jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed.
If there is a contest as to whether the alleged dismissal the subject of the application has
occurred, this is an antecedent question which has to be determined before the powers to deal
with the dispute conferred by s.368 can be exercised.2
Evidence and Submissions
[7] In its original response to the application, PPG accepted that the Applicant was
employed by it on 9 October 2023.3 It contended however that as a result of a sale to another
entity, the Applicant was no longer employed by it at the time of the termination complained
of, that is on 5 December 2023. The Respondent said that by 5 December 2023, the Applicant
was employed by a different entity.
[8] In its later submissions, the Respondent denied that the Applicant was ever employed
by it.4 Instead, it was contended that the Applicant had been employed by a different entity from
the outset. The Respondent said that the Applicant was originally engaged by a company called
Ennis Traffic Safety Solutions Pty Ltd (Traffic Solutions) on 9 October 2023. Traffic Solutions
was said to be a separate corporate entity which operated one of the Respondent’s business
units in Australia.
[9] The Respondent said in its submissions that all of the shares in Traffic Solutions were
sold on 17 October 2023 and that from this point it had no involvement in Traffic Solutions
other than providing some initial support ‘to ensure continuity’. It said it had no knowledge of
or involvement in what occurred between the Applicant and his employer from 17 October
2023.
[10] The evidence for the Respondent was provided by Mr. Ben Doyle, who is head of the
Respondent’s Human Resources Department for Australia and New Zealand. His evidence, in
summary, was as follows:
(i) PPG acquired Traffic Solutions in or around December 2020.
(ii) Prior to 17 October 2023, Traffic Solutions was a ‘business unit’ of PPG.
(iii) PPG provided support to all business units, including, prior to 17 October 2023,
Traffic Solutions. That support included a central payroll service.
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(iv) The Applicant commenced employment with Traffic Solutions on 9 October
2023. He entered into a standard form contract used by the Respondent across all its
business units.
(v) Traffic Solutions is a subsidiary of Ennis Paint Australia Holding Pty Ltd
(Ennis). On 17 October 2023 Ennis Paint UK Holding Company Ltd (Ennis UK) which
is a subsidiary of PPG Industries Inc., an American Fortune 500 company, sold all of its
shares of Ennis to AB Geveko (Geveko).
(vi) As part of the transfer of shares in Traffic Solutions to Geveko, the Respondent
continued to supply some services for a short period to ensure continuity in the business.
(vii) The Applicant was only issued with one pay slip during the period that Traffic
Solutions was a subsidiary of PPG.
(viii) PPG was not involved in the termination of the Applicant’s employment.
[11] Documentary evidence was also provided by Mr. Doyle. This included a copy of
correspondence between the Applicant and the Respondent of 22 August 2023, a contract of
employment of the same date and a pay slip for the Applicant for the pay period ending 31
October 2023.
[12] In my view the first two documents support the conclusion that the Applicant was
employed by the Respondent commencing 9 October 2023. The correspondence is headed
“Employment with PPG Industries Australia Pty Ltd” and is signed by the Talent Acquisition
Partner for that entity. The body of the document says, relevantly:
“Thank you for choosing PPG. I am pleased to confirm our offer of employment to you
for the position of Inventory Controller, Traffic Solutions, commencing on October 9
2023.
…
Please find enclosed your Employment Contract, which outlines the terms and
conditions of your employment.
…
Manoj, I look forward to you joining the PPG team and wish you well in your new role.”
[13] The employment contract includes the following:
“We are pleased to offer you employment with our Traffic Solutions business unit with
PPG Industries Australia Pty Ltd (the Company or PPG)…
1. Employer
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Your employers (sic) is PPG Industries Australia Pty Ltd (the Company or PPG). Your
employment with the company will commence on 9 October 2023…
2. Position
You are employed as a (sic) Inventory Controller, Traffic Solutions reporting to the
Supply Chain Manager. Your duties are as outlined in the position description. In
addition, you may be required to undertake such other duties as PPG reasonably
requires from time to time…
3. Place of Work
Your principal place of work will be Traffic Solutions, Ingleburn, New South Wales or
wherever the Company may reasonably relocate its premises from time to time…
6. Remuneration
Your annual salary is specified in the First Schedule….PPG pays its employees monthly,
less PAYG tax deductions, by direct credit to a bank account or Credit Union account
of your choice on the 16th of each month…
[14] There are numerous references throughout the contract to ‘PPG’ or ‘the Company’ as
the employer. The contract was sent by the Talent Acquisition Partner for that entity. The only
reference to ‘Traffic Solutions’ is to that body as a ‘business unit within PPG’, in the job title
‘Inventory Controller, Traffic Solutions’ and in the place of work as ‘Traffic Solutions
Ingleburn’.
[15] Mr. Doyle’s evidence was that the Applicant was employed by Traffic Solutions on 9
October 2023. The submission was made that the references in the contract to PPG as the
Applicant’s employer was an error that occurred because of the use of standard form documents
across the business. It was argued that objectively construed, the documentation relevant to the
employment relationship made it clear that the employer was Traffic Solutions and not PPG.
The payslip for the period ending 31 October 2023 was cited as evidence supporting this
conclusion. That document has Ennis Traffic Solutions Pty Ltd in its heading and at the end
and includes an ABN for that entity. It also has a PPG logo at the top. I do not regard this
document as sufficient evidence to conclude that the Applicant was engaged by Traffic
Solutions on 9 October 2023 rather than PPG. I note that the correspondence advising the
Applicant that he had been offered the position5 refers to the position as Inventory Controller
Traffic Solutions however I do not consider that someone in receipt of the document from PPG
would have understood themselves to be employed by Traffic Solutions.
[16] I regard the employment contract as the best evidence as to the initial employing entity
and in my view, the terms of that document make it reasonably clear that the employing entity
was PPG from 9 October.
[17] The evidence as to the Applicant’s employer on and after 17 October 2023 however is
problematic. The Applicant’s own submission was that on 17 October 2023, PPG ‘sold
business’ to Geveko.6
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[18] The evidence of Mr. Doyle was that there was a transfer of share ownership, as opposed
to the sale of a business and its assets, from a PPG-related entity to Geveko. A transaction of
that kind would mean that the existing business would remain but would be conducted for the
benefit of different shareholders. Ordinarily there would be no need for employees to transfer
from an existing employer to a new employer. Further, Mr. Doyle’s evidence is unclear in that
he says that there was a transfer of shares in Ennis (a holding company of Traffic Solutions)
from Ennis UK to Geveko7 and a transfer of shares from Traffic Solutions to Geveko.8 Further,
two of the Applicant’s payslips were provided for the pay periods ending 30 November and 31
December 2023. The payslips were issued to the Applicant by Geveko. They are documents
that are required by the Act to be provided by an employer to an employee. They support the
conclusion that by November 2023, the Applicant’s employment had transferred to Geveko.
[19] The termination of employment about which the Applicant complained and which the
Applicant accepted occurred on 5 December 2023, was effected by correspondence from
Geveko to the Applicant on that date. The correspondence refers to the purchase by Geveko of
all shares in Traffic Solutions from ‘PPG’ and the need for an organisational restructure. It says
that in order to effect the merger of the two businesses, the decision had been made to make the
Applicant’s position redundant, effective immediately.
[20] The Applicant bears the burden of proving that he was employed and dismissed by the
Respondent at the relevant time in order for his case against the Respondent to succeed. In my
view the available evidence indicates that by 5 December 2023, the Applicant was no longer
employed by the Respondent. The Applicant accepted that there had been a sale of business on
17 October 2023. Geveko was the entity that had paid the Applicant his wages for the months
of November and December, including his accrued entitlements on termination. Although the
evidence does not entirely explain how it was that the Applicant came to be employed and
ultimately terminated by Geveko on 5 December 2023, it does support the view that Geveko
was the entity that employed him by that time and ultimately terminated his employment. In
that case I conclude that the Applicant was not dismissed by the Respondent because the
Applicant was not employed by the Respondent at the relevant time.
[21] I also observe that the Applicant’s complaint was always against PPG and not Geveko.
He did not challenge the bona fides of the termination for reasons of redundancy. The Applicant
said that the recruitment process was unfair. He said he moved from New Zealand to take up
the position with PPG and within a week that company had sold the business. He said he moved
to take up a position with PPG not Geveko. He said PPG would have been aware that he was
moving to take up the position and he sought compensation for ‘unfair recruitment’ and the
financial and mental stress that had been caused because of the recruitment process and the
circumstances in which he found himself.
[22] The Respondent correctly pointed out that the application did not allege that the
dismissal had occurred in contravention of Part 3-1 of the Act. Rather, the application and the
submissions of the Applicant complained of an unfair recruitment process but not that the
Applicant had been dismissed in contravention of the relevant Part. Whilst it may be
understandable that the Applicant feels aggrieved by the events that unfolded, it appears that
the application was misconceived from the outset. There is nothing in the Applicant’s material
that alleges that he has been dismissed in contravention of Part 3-1.
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[23] The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR773299
1 Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche [2023] FWCFB 101.
2 Lipa op cit at paragraph [4].
3 Response 2.2, paragraph [3].
4 Submissions paragraph [2].
5 Appendix D Employer Response.
6 Submission paragraph [2].
7 Statement, paragraph [6].
8 Ibid, paragraph [7].
THE FAIR WORKS LUSTRAL AMISSION THE SE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb101.pdf
