Kids Academy Hope Island Unit Trust T/A Kids Academy Hope Island v Lesley O'Keefe

[2020] FWC 6816

[2020] FWC 6816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Kids Academy Hope Island Unit Trust T/A Kids Academy Hope Island
v
Lesley O'Keefe
(C2020/6031)

COMMISSIONER BOOTH BRISBANE, 16 DECEMBER 2020

Variation of redundancy pay.

[1] Kids Academy Hope Island Unit Trust T/A Kids Academy Hope Island (Kids Academy) has made 37 applications under to s.120 of the Fair Work Act 2009 (the Act) in relation to a redundancy payment otherwise due to its former employees.

[2] Kids Academy is seeking from the Fair Work Commission (the Commission) that the redundancy pay be reduced to nil on the basis that Kids Academy is not able to pay its former employees’ redundancy entitlements.

[3] This Decision deals with Kids Academy’s application to reduce Lesley O’Keefe’s redundancy pay to nil.

[4] Section 120 of the Act provides as follows:

“120 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.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[5] On 22 September 2020, a Notice of Listing was issued listing the matter for Conference on Thursday, 8 October 2020. The parties were asked to confirm their contact details to Chambers, for the purposes of the conference, by 1 October 2020.

[6] On 8 October 2020, my Associate attempted to contact Ms Jodie Luff, Chief Operating Officer and nominated contact, by telephone multiple times to connect her to the conference and left a voice message requesting an urgent call. My Associate contacted Mr Mark Fraser, who was listed as Kids Academy ’s Representative on the Form F45A – Application to vary redundancy. Mr Fraser advised that he was not acting on behalf of Kids Academy in this matter and did not participate in the conference.

[7] Correspondence was sent on 8 October 2020 noting Kids Academy did not attend the conference. Ms Luff was requested to contact Chambers urgently. Following the Conference, Ms Andra Phipps, Accounts Administrator sent correspondence to Chambers stating as follows:

“I apologise, I have just returned from lunch to discover the below email & it is the first notice I have in relation to the hearing of this matter. Mr Fraser provided me with the contact number [number redacted] & advised me to join in Jodi’s absence however I do not have a conference number to join the conference. I have just tried the number in the below email however that has taken me to a message bank service.

Please let me know if there is anything I can do to provide assistance in Mrs Luff’s absence.”

[8] My Associate contacted Ms Phipps and indicated that the Conference had concluded, and correspondence was to be issued.

[9] On 14 October 2020, Directions were issued requiring Kids Academy to provide reasons for its failure to attend the Conference listed on 8 October 2020 and submissions addressing the matters in ss.119 and 120 of the Act. Kids Academy was directed to provide this material by 4 November 2020.

[10] On 6 November 2020, my Associate attempted to contact Ms Luff and was unsuccessful. A voice message was left on Ms Luff’s phone requesting her to contact Chambers to advise whether Kids Academy intends to proceed with the application and file material in accordance with the Directions. My Associate then contacted Ms Phipps, who indicated that she would advise Ms Luff that an attempt to contact her had been made. Ms Phipps advised she is not handling the matter and would no longer be employed by Kids Academy by 13 November 2020.

[11] Correspondence was sent on 6 November 2020, noting Kids Academy’s failure to provide material in accordance with the Directions and that no contact requesting for an extension to file materials had been made by Kids Academy. Kids Academy was directed to provide reasons of its failure to comply with Directions of the Commission and file submissions by no later than 11 November 2020.

[12] On 12 November 2020, the United Workers’ Union, on behalf of its member, filed submissions seeking the Commission to exercises its discretion under s.587 of the Act to dismiss the applications for want of prosecution. Kids Academy was copied into this correspondence.

[13] On 19 November 2020, my Associate attempted to contact Ms Luff. A voice message was left that was converted to a text message requesting Ms Luff return Chambers’ telephone call as soon as possible.

[14] On 27 November 2020, correspondence was sent to the parties noting that to date, no correspondence or telephone contact had been received by Kids Academy. Kids Academy was directed to provide an update to Chambers by 3 December 2020. Kids Academy was also put on notice that if no correspondence was received, the applications may be dismissed under s.587 of the Act.

[15] At the time of this decision, Kids Academy has not responded to the correspondence of 27 November 2020 and has taken no measures to press the application.

[16] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[17] After considering all of the material, I have decided to dismiss the application under to s.587(1)(c) of the Act. Kids Academy has demonstrated an unwillingness to prosecute its own application and consequently, I find that the application has no reasonable prospects of success.

[18] As a consequence, no orders pursuant to s.120 of the Act will be made and any redundancy pay that may be owed to Lesley O’Keefe should be paid in accordance with the Act. Lesley O’Keefe may elect to seek the assistance of the Fair work Ombudsman.

[19] The Application is dismissed.

COMMISSIONER

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