Envirotech Education T/A Envirotech Education Consultancy Pty Ltd v Barbara Sharon De Oliverira Da Silva and Angus Roberts

[2021] FWC 3802

[2021] FWC 3802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Envirotech Education T/A Envirotech Education Consultancy Pty Ltd
v
Barbara Sharon De Oliverira Da Silva and Angus Roberts
(C2021/2137)

COMMISSIONER SIMPSON BRISBANE, 1 JULY 2021

Variation of redundancy pay.

[1] Envirotech Education T/A Envirotech Education Consultancy Pty Ltd (the Applicant) has made an application pursuant to s.120 of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) vary the redundancy entitlements for Ms Barbara Sharon Oliverira Da Silva and Mr Angus Roberts (the Respondents), on the basis of having obtained other acceptable employment for the Respondents, and also on the basis of the Applicant’s inability to pay.

[2] The Respondents’ entitlement to redundancy pay is in accordance with the Educational Services (Post-Secondary Education) Award 2020 [MA000075].

[3] Ms Da Silva was entitled to 10 weeks redundancy and Mr Roberts was entitled to 8 weeks. The Applicant was seeking for both of these amounts to be reduced to nil.

[4] Directions were issued for filing of materials by the parties. The Applicant was directed to file and serve its statements and submissions by 24 May 2021, and the Respondents to file by 7 June 2021. The matter was listed for hearing on 15 June 2021.

LEGISLATION

[5] The Award provides that Redundancy pay is as provided in the NES, as outlined in the following sections of the Act.

[6] Section 119 of the Act provides as follows:

“119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

[7] Section 120 of the Act further provides:

“Variation of Redundancy Pay for Other Employment or Incapacity to Pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.”

EVIDENCE AND SUBMISSIONS

Background

[8] The Applicant provided in the F45A application for both matters that no international students are coming to Australia due to COVID-19, as a direct result of the Government directions restricting international students travel to Australia. The Applicant submitted it managed to get most of its English students to complete the full duration of the course, and its last English student graduated in March.

[9] The Applicant said its business is currently under a massive financial stress like never before due to COVID-19.

[10] Mr Roberts, and Ms Da Silva, both English as a Second Language (ESL) teachers, provided a joint statement of 12 pages in response to applications C2021/2137 and C2021/2138 which they adopted as their evidence. 1

[11] Mr Roberts said he has worked for the Respondent for more than four years in a permanent full-time capacity, and his normal week was 45.5 hours at $34/hr. He said he led the English Department called English Language Intensive Courses for Overseas Students (ELICOS often referred to as “English”) in a position called Senior English Trainer.

[12] Mr Roberts said the department functioned to provide language tuition and support to students with non-English speaking backgrounds to prepare them for study of VET courses as offered by the Applicant and others. These students were sourced overseas via education agents or in some cases domestically (if they were already studying in Australia at the time of purchasing a course with the Applicant). Mr Roberts said increasingly, the business had looked to source a greater proportion of domestic students, well before the beginning of COVID-19.

[13] Ms Da Silva said she has worked for the Applicant for more than five years in a permanent full-time capacity and her normal week was around 37 hours. Ms Da Silva said she taught Certificate I and II in English (VET Department) and later Elementary, Pre-intermediate and Intermediate levels as well as developing and delivering English workshops in the English Department called ELICOS.

[14] Both Mr Roberts and Ms Da Silva said the Applicant had not provided satisfactory or comprehensive evidence of a financial incompetence or incapacity to pay, and the Applicant did indeed have the capacity to meet their redundancy obligations, as supported by continued six-figure revenue, and expenditure including but not limited to the recruitment of new staff.

[15] It was said the Applicant was fully aware of the end of JobKeeper well in advance, and it chose to execute redundancies at precisely that time, in conjunction with the just-prior removal of cash from the accounts that they have submitted to the Commission, with the objective of avoiding their legal responsibility to honour the entitlements.

Have Respondents been terminated?

[16] Ms Shelly Bengiat, Director of the Applicant, gave evidence that the Applicant had not terminated Ms Da Silva or Mr Roberts, but rather it had stood them down. Ms Bengiat said the Respondents have not received any payments for their accrued entitlements. Ms Bengiat adopted as her evidence being a statement filed on 24 May 2021. 2 The Applicant also provided a letter from its Accountant.

[17] Ms Bengiat’s evidence was unclear on the termination of the Respondents. Ms Bengiat appeared to be of a view at one point that they were stood down and the Applicant was seeking a waiver from having to pay redundancy. Ms Bengiat went on to say however that the Respondents were told by the Applicant that the Respondents could no longer be employed and indicated that the Respondents been told they were terminated. Ms Bengiat then indicated the other accrued entitlements had not been paid out yet pending the outcome of this application. It was put to Ms Bengiat and she accepted that she had engaged the services of a Human Resources consultant and yet she was unsure if the Respondents had been dismissed despite having advice.

[18] Ms Bengiat said the Human Resources adviser had not been involved in a case where an employer had sought a waiver of the requirement to pay redundancy.

Other acceptable employment

[19] The Applicant provided on its Form F45A in both applications that Ms Da Silva and Mr Roberts have been employed English teachers and that this position does not require a Certificate IV in Training and Assessment. Currently there are no English students from oversees in Australia. It submitted Ms Da Silva and Mr Roberts do not have the Certificate IV in Training and Assessment and the Industry Currency in its other Vocational courses.

[20] The Applicant submitted it offered Ms Da Silva and Mr Roberts in the last couple of months to do proof-reading for its new Marine studies courses for High Schools and reviewing its new and current websites as alternative duties. It submitted that it currently does not have any other jobs to offer.

[21] . Ms Bengiat was asked if offers of employment were made to the two Respondents. Ms Bengiat said those discussions did not involve her directly however she understood professional development was offered. When it was raised again whether a job was offered Ms Bengiat said there were no jobs to offer, but professional development had been offered at an earlier point and had the Respondents taken on that professional development they would have been able to become trainers in other departments within the Applicants organisation.

[22] Ms Bengiat confirmed it was the offer of professional development that was the alternative employment. Ms Bengiat said the Marine Course was the course offered for professional development around November 2020. It was put to Ms Bengiat that Mr Roberts had a Bachelor of Science in Biology from Sydney University and that was superior to the vocational course. Ms Bengiat disputed this and said his degree did not match the skills learnt in the vocational course. Ms Bengiat said other tasks were performed such as proof reading, but Ms Bengiat did not maintain that this constituted an offer of other acceptable employment.

[23] During the course of the Hearing Ms Bengiat said the offers to undertake professional development training were at no cost so they would be eligible to be trainers in other departments. Ms Bengiat said both Respondents declined the offer. Ms Bengiat said if the Respondents did the training, they could have been offered suitable employment.

[24] The evidence did not demonstrate that the proof reading amounted to suitable alternative employment.

[25] The Respondents submitted that the vague reference to an offer to upskill or offer a scholarship does not constitute acceptable alternate employment. It was submitted Mr Roberts has a degree in biology from Sydney University, years of management experience, and the aforementioned marine-related skills (diving and boating), all of which was either provided to the HR department or stated in his CV on file with them. Mr Roberts gave oral evidence affirming what was in the written material that no formal offer of alternative employment was ever made by the Applicant. Ms da Silvia also gave oral evidence affirming no offer of an alternative job was ever offered.

[26] The two Respondents were clear in their evidence that they were not offered, nor have they accepted, appropriate alternative employment. Ms Bengiat was asked if she had written evidence of the offer to undertake training. Ms Bengiat said she believed there was a written refusal from Ms Da Silva on file but would have to check regarding Mr Roberts.

[27] Ms Da Silva said Mr Noah Bengiat contacted her in November 2020 to tell her about the decision to close the English department. Ms Da Silva said she suggested to Mr Bengiat that she could also assist the school in the reception department or keep doing the same work in the English department (placement tests, proofreading, checking materials) and she mentioned that she was pursuing a double master's degree in Commerce and Translation to upgrade her current qualifications (Certificate IV in TESOL, Bachelor degree of Arts, major in languages and literature).

[28] Ms Da Silva said the possibility of studying one of the Applicant’s courses was brought up, but a certificate in Marine Conservation wouldn't show career progress and Ms Da Silva said Mr Bengiat didn't give Ms Da Silva any job prospects in that area.

[29] Ms Da Silva said in 2020, when the pandemic had become apparent, the department rapidly shifted to online delivery and working from home, with staff being shed almost immediately if they didn’t qualify for JobKeeper. It was said those remaining accomplished this with a minimum of fuss, and managed to largely keep the students satisfied and attending. Through-out the year, the department began reducing hours for the remaining staff to match the amount covered by JobKeeper.

[30] Ms da Silva said as JobKeeper progressed in phases ending in March 2021, so too were hours reduced to match. Ms Da Silva said the Applicant received a massive amount of government support with their wage expenses, and in her case at least, effectively had a 12-month period of not having to draw from their own pockets for her pay.

[31] Ms Da Silva said Mr Noah Bengiat contacted the remaining staff in November 2020 (from Israel via Teams) to inform them (verbally) that the decision was official to close the English department, with a tapering down until the last then current student had completed their course.

[32] It was said that concurrently with this winding down, Ms Da Silva and Mr Roberts increased other duties as directed by their supervisors, including the editing of course material of their VET material, proofing online material for language errors, and marking English language placement tests for newly-enrolled students (tasks they had previously undertaken from time to time during their employment period).

[33] Mr Roberts and Ms Da Silva said they received an email from the Applicant’s HR representative advising they had been ‘stood down’ for several weeks by that time (since March 29th). It was said they had not been checking work emails regularly, and so it was only sometime later when Mr Roberts read the emails stating:

“Dear Angus,

Hope you are safe and sound. We would like to inform you that we are applying for Fairwork initiative to help businesses like us, who suffered tremendously from the COVID-19 pandemic, for a redundancy payment. Once we apply, hopefully next week, we will send you a copy of the document. We will do everything we can to support you. Please feel free to contact us if you have any questions.

Thanks.

Kind regards,

…………….”

[34] It was subsequently discovered this was the application to vary redundancy to zero, much to the surprise and dismay of the Respondents.

[35] Regarding the Applicant’s claim that it had obtained other acceptable employment, the Respondent’s contended that at no point was an alternative position agreed to, discussed, or even suggested by any member of the Applicant’s business. The Respondents submitted that although the composition of their duties changed towards the end of their employment, they remained under the domain of their existing positions.

Cannot pay

[36] On the morning of the Hearing the Applicant filed further information to demonstrate its financial position and cash flow. Mr Roberts queried why the material was filed on the morning of the Hearing giving the Respondents no opportunity to see it before the Hearing. Ms Bengiat responded that it was to provide up to date information.

[37] I determined it was appropriate for the material to be considered and adjourned the Hearing in order for the Respondents to determine whether they would be in a position to continue with the Hearing. After an adjournment, Mr Roberts and Ms Da Silva raised concerns about the late filing of the material but indicated that in the interests of efficiency they were prepared to proceed.

[38] The Applicant provided further correspondence from its Accountant including updated information that the Applicant’s revenue has fallen by more than 50% over the last 12 months; revenue is expected to continue to decline as students who were already in Australia at the time of the pandemic complete their courses and cannot be replaced by new students; The company's cash reserves have decreased by $234K during the 12 month period; The company received the $250,000 QRIDA Business Support Loan from the QLD Government; The company, through its employment entity, qualified for all three stages of the JobKeeper Wage subsidy; The company is currently reliant on contributions from owners to help continue in its operations; The company was required to seek an extension on its current funding facility with the Commonwealth Bank for $700,000 that was due to expire in 2021.

[39] The Applicant also provided its Balance Sheet, and a Profit and Loss Statement up to 31 May 2021.

[40] Ms Bengiat said it has three marine trainers and about three months ago two of them resigned, and those teachers were recently replaced but the newly engaged teachers were engaged as contractors rather than as employees. Ms Bengiat said the two contractors are working for about two days each a week.

[41] It was put to Ms Bengiat that there had been other new employees hired around the time of the redundancy of the two Respondents referring to a series of new hires announced on Teams for teaching staff provided with the Respondents material. Ms Bengiat’s evidence was that some new hires were onshore and some offshore and efforts had been made to diversify by investing into the Philippines to export into that market, and the teachers had been engaged as contractors.

[42] Ms Bengiat said the Applicant had submitted for recognition of a Marine Program in late 2020 and it was hoping for it to be funded for that, however unfortunately that has not happened. Ms Bengiat said there has been a $1.3 million dollar loss and cash movements have been for meeting expenses and money has not been taken out of the business as referred to in the Respondents material.

[43] Ms Bengiat said the Applicant has not been successful so far in making a significant transition to domestic students. Ms Bengiat also said that after the arrival of the pandemic, contrary to what the Respondents had said about the Applicant receiving significant government support, it was $1.3 million dollars in debt. Ms Bengiat confirmed that the Applicant had around 25 employees when the list was filed with the Commission on 21 May but a few of those employees were no longer employed, and the Applicant was seeking government assistance to continue to employ those staff. Ms Bengiat said the number was now closer to 20 at the time of the hearing.

[44] Ms Bengiat was referred to the Profit and Loss Six Month Forecast based on Expected Cash Inflows and Outflows filed by the Applicant. The gross wage bill was in the order of $90,000 per month increasing to over $130,000 for July and back into the order of $90,000 per month for the following month.

[45] Ms Bengiat said the Applicant also had some contractors in Australia, and some offshore. Ms Bengiat said quite a few contractors had been terminated in recent times.

[46] The Respondents submitted that ELICOS courses operate under a different regulatory regime to VET courses, and have fundamentally different structural requirements (eg, student : teacher ratio limits, graded-class, minimum face to face contact hours per week, completely different assessment criteria, etc). As such, the ELICOS department was a relatively small and unique section of the Applicants business, somewhat insulated from the primary activity of the business (namely, delivering VET courses).

[47] The Respondents contend that the submissions as part of this application are insufficient in establishing a credible overview of the Applicants financial position for the following reasons:

•  The Applicant has not provided a comprehensive picture of the pre- and post- pandemic financial situation, including cash and business assets;

•  The Applicant has not providing a comprehensive overview of the relationship between entities in the Envirotech group of companies, including their multi-million dollar property and event venue in Currumbin (Sol Gardens);

•  The Applicants financial submissions are selective and unverifiable, or mere unexplained projections;

•  The Applicant has not supplied statements from an independent source such as the ATO;

•  The Applicant has not listed its current business assets;

•  The Applicant has not provided the company’s total JobKeeper receipts.

[48] The Respondents referred to the decision in Coal River Farm Investments Pty Ltd T/A Coal River Farm 3, in which a range of financial documents were provided in support of Coal River Farm’s submissions. The FWC ultimately declined to find that Coal River Farm had insufficient means to pay the redundancy entitlements due to deficiencies in the financial information provided by the employer in that case, including a failure to provide evidence of revenue prior to the impact of COVID-19.

[49] The Respondents contended that the Applicant in this case has similarly provided insufficient financial information. The Respondents submitted that the Applicant’s document titled “Employee’s List” refers only to local employees, and omits the pre-existing cost-reduction strategy that the Applicant was undertaking, predominantly through the transition to back-office staff moving offshore, for example in south-east Asia. The Respondents submitted while there has been a long, strategic reduction of Australian-based staff the company has continued to actively recruit new staff throughout the period Mr Roberts and Ms Da Silva became redundant.

[50] The Respondents asserted this as direct evidence of a capacity for the Applicant to meet its obligation to pay their redundancies. The Respondents submitted a number of examples of the customary company-wide announcements on the Applicant’s Teams platform welcoming new staff.

[51] The Respondents submitted that the Applicant has supplied self-authored, unverifiable enrolment summaries, covering only 2021 to date (less than 6 months), and then further supplemented this with ‘projections’ to August, missing any explanation of how these figures were arrived at, and what assumptions were made.

[52] The Respondents noted that in the forecasted enrolment summary provided by the Applicant, the tuition revenue does not appear to match the corresponding cash projections from their external accountants. The Respondents said this casts further doubt on the comprehensiveness of the income sources available to the business, and/or the accuracy of any such projections in demonstrating the impossibility to source funds to meet the legal requirement to pay the Respondents’ redundancies.

[53] The Respondents submitted that the revenue projections coming from the Applicants accountants are significantly higher than what is being self-assessed in the Applicant’s submitted spreadsheets.

[54] The Respondents submitted that in attempting to meet the bar to prove financial incompetence, such cash summaries are not enough, and a comprehensive description of all business assets, including intellectual property, should also have been provided by the Applicants.

[55] The Respondents referred to the decision of Commissioner Hampton in Mildren Automotive Pty Ltd 4where he said as follows:

“The assessment of financial competence will include consideration of the financial standing of the business including its cash position and the assets of the business.”

[56] The Respondents submitted regarding the statement from the Commonwealth Bank, that this is a Letter of Offer watermarked “DRAFT” and there is no confirmation that a loan was necessarily accepted and entered into on the terms provided. The Respondents submitted the Applicant refers to over a million dollars in debt, but there is no comprehensive breakdown of this, nor the supporting documentation.

[57] The Respondents submitted the accountants do not seek to mention or support any claims regarding debt load and the Applicant’s accountants make three statements in their letter:

(1) They act as accountants for the Applicant.

(2) The Applicant received JobKeeper for the entire programme.

(3) The Applicant experienced a “significant drop” in income.

[58] The Respondents said they did not contend the first two points, and in the third, given the word “significant” has no precise meaning, a conclusion cannot be drawn. The Respondents submitted the Applicant goes to great lengths to point out the well-publicised impact of the border closure, but the reality is that students rarely pay their full tuition fees upfront. This income comes in as a stream throughout the duration of the student’s enrolment and this is reflected in their submitted statements.

[59] The Respondents submitted that while the closure of the borders prevented new students from entering the country, the existing students did not abandon their courses overnight, and while some cancelled their courses to leave Australia over the course of the past year, others purchased even more courses with the Applicant to extend their student visas to be able to stay.

[60] The Respondents submitted that students could commence study from their home countries via online study, and therefore the impact of the border closure was gradual (bearing in mind, higher certificate, diploma courses, and double qualifications can require students to commit for 1-3 years of study). Further, the Respondents submitted the business was already in the process of pivoting to the domestic market and reducing staff costs. The Respondents submitted that, there was no “turning off of the taps” in terms of tuition revenue.

[61] The Respondents did not dispute that falling ELICOS enrolments led to the closure of their department, however ELICOS was a relatively small department in a large predominantly-VET school. The Respondents said ELICOS was not as profitable as popular VET courses (in normal times) due to the legislated requirement to deliver 20 hours per week of face-to-face class time, and the maximum of 18 students to a teacher. The Respondents said neither of these compliance constraints exist for the VET courses, which is a significant factor in the readiness of the Applicant to close the ELICOS department in their opinion.

[62] The Respondents submitted that while the Applicant states that in March 2020 the pandemic and closure of air travel “collapsed the industry overnight….” reports attached from the Applicant’s own RTO management system show the truth is nothing quite so dire.

[63] The Respondents referred to the number of cancellations in 2020 compared to the large number of students who either enrolled and have since completed their course, deferred to a later date, or are still current students. The Respondents submitted that the Applicant is deliberately displaying selective data to suggest a grimmer cashflow position than exists in reality.

[64] In reference to the Applicant’s bank statements the Respondents submitted that the one for their trust account appears to serve to accept incoming fees and the other to pay expenses. The Respondents highlighted a sample of transactions from these accounts which demonstrate regular large transactions to and from the business owner’s personal and/or other business accounts.

[65] The Respondents submitted that both show numerous instances of unexplained large transfers to and from both accounts, some marked as “owner transfer” or similar. For example, on 26 March 2021, a mere three days prior to the redundancies taking effect, a withdrawal of $74,000.00 marked “owner funds” leaving a balance of less than $1000.

[66] The Respondents submitted that this brings the balance down to an amount that supports their narrative regarding incapacity to pay, and this is just one example of several unexplained, significant movements of funds in and out of these accounts.

[67] The Respondents submitted these two bank accounts are not a comprehensive picture of the sources of funds available to the Applicant. The Respondents submitted it is not possible to be certain that the Applicant has not simply ensured a low amount of cash in the submitted accounts by moving funds between other business accounts and personal accounts to promote the appearance of being illiquid for the purposes of convincing the Commission.

[68] The Respondents submitted that the Applicant’s submissions amount to a combination of stating the obvious (their English department was affected by the pandemic and the business took the decision to close it down, leaving them with these two redundancies to avoid), and statements of a highly selective nature pointing to a downturn in the business, alongside a mass of irrelevant data that serves no apparent purpose.

[69] The Respondents submitted the Applicant continues to generate six-figure revenue as noted in its own submissions, which makes the two redundancies a relatively minor burden. The Respondents submitted the Applicant continues to have incoming revenue from existing students, government grants, and existing bank facilities that are uncertain from the Applicant’s submissions. The Respondent submitted that this could be further facilitated by the cutting of an expenditure item or the sale of assets.

[70] For example, the Respondents submitted that the Applicant has shown a cash summary for March 2021 (the month that they became redundant) that states monthly revenue of over $300,000. The Respondents submitted that Mr Roberts’ redundancy entitlement is $12,376 and Ms Da Silva’s is $11,620, yet the Applicant is able to find $20,000 for marketing in a month (see Line 42 of the cash flow forecast submission).

[71] The Respondents noted from the supplied bank statements that large cash transactions (both incoming and outgoing) take place with unknown outside entities and with the owners themselves (marked “owner transfer” or similar) and that when expenses are due to be paid (some being quite significant amounts) then a cash deposit will appear in the account to cover said bill. The Respondents submitted the business has money and assets moving to and from entities and accounts that are not provided or explained in the Applicant’s submission.

[72] The Respondents submitted the Applicant has already-enrolled students having to continuing paying their payment plans with the school, often with multi-year course enrolments; on-shore international students purchasing new courses to continue to stay in Australia; domestic students enrolling; new students enrolling for online delivery while abroad (in anticipation of the border opening by 2022); the strategic pivot towards course delivery via Australian high schools, which also pre-dated the pandemic.

[73] The Respondents submitted the Applicant is well-placed to survive where less flexible and/or diversified competitors have failed. The Respondents submitted the Applicant is still hiring new employees, both domestically, and abroad.

[74] The Respondents submitted one new strategic direction for the business is to sell its courses in overseas markets, on the strength of Australia’s reputation as a quality education provider. The Respondents provided an example of one of the Applicant’s marketing documents written earlier in 2021, referring to entities within the corporate group, and the ease at which funds and assets may be transferred within, and the lack of comprehensive transparency in the Applicant’s submissions in this regard.

[75] The Respondents submitted this document also counters the attempt of the Applicant to direct focus towards only one element (international VET students currently unable to come from abroad) of their activity in claiming a downturn. Ms Bengiat was asked whether the Applicant was paying wages above the amount of JobKeeper received (when the Applicant was receiving JobKeeper) and she said for some staff but not others.

[76] At the conclusion of the Hearing I advised the parties that I had reserved my decision. On the day following the Hearing the Applicant attempted to file further material. Correspondence was sent to the parties advising that the Applicant has sought to file further material after the conclusion of the Hearing and the material has been sent to chambers without being provided to the other Respondent parties and is marked as confidential.

[77] The parties were advised that as the case was closed and the parties were advised a decision was reserved, no further material may be considered unless a party makes an application to reopen the matter and the Commission grants that application after having given the other parties an opportunity to be heard as to whether the matter should be reopened.

[78] The Applicant was advised if it wished to make an application that the matter should be reopened before a decision is issued, the Applicant was directed to make that application by 5pm Tuesday 22 June 2021 ensuring the application and submissions as to why the matter should be reopened were also copied to the Respondents.

[79] The parties were advised that in the event that the Applicant makes an application that the matter be reopened, and files submissions as directed, the Respondent parties will be given until 5pm Thursday 24 June 2021 to file submissions on the question of whether the matter should be reopened.

[80] No submissions were filed by the Applicant and on that basis, I have proceeded to determine the matter on the basis of the material before the Commission at the time of the conclusion of the Hearing on 15 June 2021.

CONCLUSION

[81] I am not satisfied on the basis of the evidence before the Commission that the Applicant has obtained other acceptable employment for either Mr Roberts or Ms Da Silva. The Applicant’s case on this point appeared to rest on the two Respondents declining an offer to participate in professional development in the form of a marine conservation certificate course in late 2020 or early 2021 that may have created an opportunity for them to have worked in other departments. It is clear this does not constitute an offer of other employment, let alone other acceptable employment. On that basis the application as it pertains to s.120(1)(b)(i) must fail.

[82] The evidence establishes the Applicant continues to have an income stream, although substantially reduced, and cash flow forecasts predict that it will continue to have income. This is further supported by the evidence that the Applicant continues to make fortnightly wage commitments for in the order of approximately 20 employees despite carrying significant debt and facing financial uncertainty.

[83] Further, the bank statements provided have indicated there has been a capacity to meet significant other expenses throughout the first half of 2021. It also appears from the evidence that the Applicant has employed some staff and engaged contractors in the period that Mr Roberts and Ms Da Silva could no longer be offered work. As was pointed out for the Respondents in closing submissions there is also some inconsistency between the proposition that the Applicant could afford to offer to retrain the two Respondents but could not afford to pay their redundancy entitlements.

[84] I have taken into account the debt burden of the Applicant, but that also needs to be weighed against the relatively small size of the redundancy amounts owed to the two employees as compared to the sums of money flowing in and out of the business whilst the Applicant says it cannot pay the redundancy amounts.

[85] On the basis of the evidence summarised above, whilst I acknowledge the Applicant is experiencing significant challenges given the nature of its business and the impact of border closures on its business model, and is carrying significant debt and facing uncertainty, it has not been established on the evidence that the Applicant cannot pay the amounts owing to Mr Roberts and Ms Da Silva. On that basis the application as it pertains to s.120(1)(b)(ii) must also fail.

[86] For the reasons set out above the application is dismissed.

COMMISSIONER

Appearances:

Ms S. Bengiat and Mr N Bengiat appearing for the Applicant.
Mr A. Roberts appearing on his own behalf.
Ms B. Oliverira Da Silva appearing on her own behalf.

Hearing details:

2021,
Brisbane:
June 15

Printed by authority of the Commonwealth Government Printer

<PR731228>

 1   Exhibit 2.

 2   Exhibit 1.

 3   [2020] FWC 3558.

 4   [2013] FWC 2113.