Jennifer Diaz v Solene Investments (Aus) Pty Ltd T/A Solene Paris

[2017] FWC 7022

[2017] FWC 7022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Diaz
v
Solene Investments (Aus) Pty Ltd T/A Solene Paris
(U2017/3689)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 DECEMBER 2017

Application for an unfair dismissal remedy – application to amend unfair dismissal application – change of Respondent named – s.586.

[1] On 5 April 2017, Ms Jennifer Diaz lodged a Form F2 – Unfair Dismissal Application (the Unfair Dismissal Application), pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been unfairly dismissed, effective 16 March 2017. The letter conveying the termination was sent by ‘Solene Paris’. The Respondent named in the Unfair Dismissal Application was Solene Investments (Aus) Pty Ltd T/A Solene Paris (ABN 98 595 886 679).

[2] On 9 May 2017, the parties participated in a conciliation conference before a Commission conciliator. The matter was not resolved. At this time, in contravention of Rule 9 of the Fair Work Commission Rules 2013, the Respondent had yet to file a response to the Unfair Dismissal Application. It did however foreshadow raising the jurisdictional objection that Ms Diaz resigned and was not forced to do so because of its conduct (s.386(1)(b) of the Act).

[3] A Notice of Listing dated 19 May 2017 required the Respondent to file its material by no later than noon on 31 May 2017. This was not complied with and there were several attempts to contact the Respondent. When contact was made on 6 June 2017, the Commission was firstly advised that the Respondent’s materials would be filed that day and then subsequently advised that the Respondent was in liquidation.

[4] On 30 June 2017, the liquidator of Solene Investments (Aus) Pty Ltd provided the Commission with a Winding Up Order of the Supreme Court of Victoria dated 3 April 2017 in which the court ordered that Solene Investments (Aus) Pty Ltd (ACN 099 745 230) be wound up in insolvency. I conducted a telephone mention on that same day. Mr Wareham appeared for Ms Diaz and Mr Trimboli, the Liquidator of Solene Investments (Aus) Pty Ltd, also attended. No representative for the Respondent attended.

[5] At the telephone mention, Mr Wareham foreshadowed that Ms Diaz may make application to amend the Respondent to the Unfair Dismissal Application. On 14 July 2017, a Form F1 Application was received from Ms Diaz seeking to change the Respondent from Solene Investments (Aus) Pty Ltd T/A Solene Paris (ABN 98 595 886 679) to The Trustee for Sol Degendorfer Family Trust T/A Solene Paris (ABN 98 595 886 679). In the F1 Application, it was submitted:

“1. In her Unfair Dismissal application, Ms Diaz identified the employer as Solene Investments with an Australian Business Number (ABN) of 98 595 886 679. These details were obtained from pay slips provided by the employer.

2. Under Section 536 of the Fair Work Act, employers are required to [provide] employees with a pay slip. The Fair Work Regulations require that a pay slip must specify the employer’s name and include their Australian Business Number.

3. A copy of a pay slip provided to Ms Diaz during her employment is at Attachment 1. The pay slip has a title of “Solene Investments” and quotes the ABN 98 595 886 679.

4. It is submitted that the name “Solene Investments” was incorrectly placed on her pay slips and was not the employer of Ms Diaz.

5. The ABN 98 595 886 679 is actually assigned to The Trustee for Sol Degendorfer Family Trust. Details of the ABN obtained from the Australian Government Business Register are at Attachment 2.

6. Solene Investments (Aus) Pty Ltd has an ABN of 87 169 585 013 and is currently under external administration. The Commission was notified of this on 6 June 2017 by a representative of the Respondent. A summary of this company’s details (including ABN) produced by the Australian Securities and Investments Commission is at Attachment 3.

7. It is submitted that Ms. Diaz incorrectly identified the employer as Solene Investments in her application because this name was incorrectly placed on her pay slips by the respondent. The ABN quoted (98 595 886 679) on both her pay slips and her application was correct.

8. It is submitted that the actual employer of Ms Diaz was The Trustee for Sol Degendorfer Family Trust and not Solene Investments (Aus) Pty Ltd.

9. It is further submitted that, in view of points 7 and 8 above, the actual employer of Ms Diaz is not under external administration and the matter should be re-listed for hearing at the earliest opportunity.”

[6] Attached to the F1 Application was a payslip for Ms Diaz for the period 13 February 2017 – 26 February 2017 that had the name Solene Investments with the ABN 98 595 886 679 on it. Ms Diaz also attached an “ABN Lookup” from the Australian Government Australian Business Register, dated 14 July 2017, that indicated the entity with this ABN was “The Trustee for Sol Degendorfer Family Trust”.

[7] On 26 July 2017, an email was sent to Sol Degendorfer via the email address [email protected] with the F1 Application and its attachments, stating:

“Please find attached correspondence received by the Fair Work Commission in regards to The Trustee for Sol Degendorfer Family Trust T/A Solene Paris.

Please provide a response to the attached application by Thursday, 3 August 2017.”

[8] The Commission received no response to this email correspondence.

[9] On 20 December 2017, correspondence was sent by the Commission to Sol Degendorfer at the same email address, stating:

“We refer to our email dated 26 July 2017, of which we have received no response.

Please find enclosed the Form F1 application filed by the Applicant on 14 July 2017, stating that the Applicant wishes to amend the name of the Respondent.

We require you to provide a response to the application by no later than 4.00pm, Thursday 21 December 2017. The response should include submissions as to why the Commission should not grant the amendment sought.

If no response is received by 4.00pm, Thursday 21 December 2017, the Commission will determine the Applicant’s application to have the name of the Respondent changed without further notice.”

[10] Later that day, a reply to the Commission’s correspondence was received from a Mr Henri Dupont, stating:

“Dear Mr Xanthos,

I advise at this stage I represent Sol Degendorfer.

I acknowledge receipt of your email below at 9.44am 20 December 2017.

I advise Ms Degendofer is away until 22 January. I note you require a response by 4.00pm 21 December tomorrow. Subsequently, I or Ms Degendofer am unable to access any files relating to this matter until the 23 January 2018 as advised above. Furthermore, Ms Degendorfer’s Manager is currently hospitalised and we are unable to request any further clarification from the Manager within the 1 day time frame you seek.

However, consent is not granted to have the Respondent substituted as without any contradictory full documentation and a copy of Ms Diaz’s employment contract any amendment would be unreasonable and without substance. As previously advised it is understood Jennifer Diaz was at all times employed by way of duly executed employment agreement by Solene Investments (AUS) Pty Ltd (in Liquidation).

Any determination for substitution without provision to seek information relating to the Applicants claim within a reasonable time would be inappropriate. We note Ms Diaz has not provided a copy of her employment agreement.

Please advise if you require a copy of the employment agreement post 23 January next.”

[11] In response, I caused reply correspondence dated 21 December 2017 to be sent to Mr Dupont, with Sol Degendorfer copied in, stating:

“Dear Mr Dupont,

We refer to your email below and note that on 26 July 2017 an email was sent to Sol Degendorfer via the email address [email protected] attaching the Form F1 and attachments that were sent yesterday morning. The Commission had in that email requested a response to the application by Thursday, 3 August 2017. Without any explanation, the email of the 26 July 2017 has not been responded to.

We advise that the deadline of 4.00pm, 21 December 2017 still applies. If the Commission does not receive a reply the Panel Head will determine the matter on the material before him. The named Respondent will of course be open to raise the objection that it is not the employer should the Panel Head grant the order amending the application.”

[12] To this correspondence, Mr Henri Dupont sent the following reply on the same day, from the email address of Sol Degendorfer:

“Dear Mr Xanthos,

Notwithstanding your response regarding sending of emails the facts remain as I have detailed in my correspondence to you of yesterday. I again confirm Ms Degendorfer is away until 22 January next. Requesting a written submission containing supporting documentation within 1 day, being 1 day before Christmas when the Respondent is away and unable to access files should be regarded as harsh and unconscionable.

As previously stated Ms Diaz has not provided a copy of her employment agreement and has been selective in documentation that she has provided, by way of only one document.

Any application must bear the facts and in the opinion of the Applicant be true and correct, in the absence of a written reply from the Respondent due to being away would be in the best interests of the Commission or the parties involved. We are not requesting the matter to be vacated without our reply just a deferral until end of January in order to provide the relevant and correct reply.”

[13] The collective approach of Sol Degendorfer, Mr Dupont and Ms Degendorfer is oblique and unsatisfactory. The use of the email address [email protected] is confusing. It is also unclear as to whether Sol Degendorfer and Ms Degendorfer are the same person. A response to the Form F1 Application of Ms Diaz was first sought on 26 July 2017. There has been no explanation as to why there has been no response in the five months since then, despite a number of opportunities for one to be given. One would have thought at the very least, this could have been addressed. Equally, the assertions made by Ms Diaz in the Form F1 remain unanswered.

[14] Section 586 of the Act provides:

“586  Correcting and amending applications and documents etc.

The FWC may:

(a)  allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b)  waive an irregularity in the form or manner in which an application is made to the FWC.”

[15] I will make the order sought by Ms Diaz and amend the Unfair Dismissal Application by changing the Respondent from Solene Investments (Aus) Pty Ltd T/A Solene Paris (ABN 98 595 886 679) to The Trustee for Sol Degendorfer Family Trust T/A Solene Paris (ABN 98 595 886 679) based on the material currently before me. An order to this effect will be issued along with this decision. That the ABN of The Trustee for Sol Degendorfer Family Trust was recorded on Ms Diaz’s payslip has persuaded me to do so and I accept the payslip may have confused Ms Diaz when she was completing the Form F2 – Unfair Dismissal Application. That the ABN remains the same was also persuasive.

[16] I otherwise note that an objection to the Unfair Dismissal Application, on the basis that Ms Diaz resigned and was not forced to do so because of the conduct of her employer, has previously been flagged. It remains open to the Respondent to press such an objection and any other objection as to jurisdiction it wishes to make. The matter will now be subject to further directions for its ongoing conduct.

DEPUTY PRESIDENT

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