Klein and Secretary, Department of Employment and Workplace Relations
[2025] ARTA 2184
•16 October 2025
Klein and Secretary, Department of Employment and Workplace Relations [2025] ARTA 2184 (16 October 2025)
Applicant/s: Andreas KLEIN
Respondent: Secretary, Department of Employment and Workplace Relations
Tribunal Number: 2024/5395
Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:16 October 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 16 October 2025 at 6:09pm
Catchwords
FAIR ENTITLEMENTS GUARANTEE – advance excluding redundancy pay – no entitlement to redundancy pay in Fair Work Act under small business exclusion – entity terminates some staff and becomes small business – governing instrument – information provided by administrators is not an offer or particular of an agreement – representations of administrators not an offer or particular of an agreement – no promissory estoppel – decision affirmed
Legislation
Fair Entitlements Guarantee Act 2012
Fair Work Act 2009
Fair Work Legislation Amendment (Closing Loopholes) Act 2023Cases
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Secretary, Department of Employment and Workplace Relations v Dooley [2023] FCA 651Statement of Reasons
On 3 July 2024, a delegate of the Respondent affirmed a decision that Mr Klein was eligible for an advance under the Fair Entitlements Guarantee Act 2012 (the FEG Act) that did not include a component for redundancy. The basis for excluding a component for redundancy was that the Fair Work Act 2009 (the FW Act) was the governing instrument in respect of Mr Klein’s former employment, and his former employer was a ‘small business employer’ at the time Mr Klein’s employment was terminated, and thus exempt from paying redundancy pay.
Mr Klein applied to the Tribunal for review on 30 July 2024. He argues that he was given assurances and an undertaking by administrators that his redundancy entitlements would be preserved if his former employer went into liquidation, and that those representations or undertakings acted as the governing instrument for his employment, and not the FW Act.
Background
Mr Klein was employed at Livn Group (Livn) from 26 October 2015 as Lead Developer, having previously worked for Livn as a contractor. Livn Group’s core business was the development and support of software used in the travel industry that aggregated and presented results for travel and booking enquiries made against multiple other software platforms. The financial performance of Livn Group was linked to the number of bookings made using its software platform, and it follows that the COVID pandemic hit the business hard.
Mr Klein’s most recent written contract of employment with Livn is dated 16 September 2020. It contained the following terms in relation to redundancy:
9.6 Redundancy – You may be entitled to redundancy payments in accordance with the Act
The reference to ‘the Act’ was defined to be a reference to the FW Act at clause 18.1. of the contract.
On 22 June 2023, DVT Group were appointed by Livn’s directors as voluntary administrators (the administrators), and information was provided by the administrators at that meeting to Mr Klein and to the employees regarding their entitlements. At that time, Livn had 17 employees.
Further information was provided by way of a circular to all employees dated 23 June 2023, and on 7 July 2023 Mr Klein was provided by the administrators with a summary of his personal outstanding employee entitlements. Mr Klein had completed a Proof of Debt claim in respect of his entitlements on 3 July 2023, and thus became a creditor.
On 27 July 2023, a meeting of creditors appointed the administrators as liquidators. The next day, on 28 July 2023, eight employees were terminated from their employment by the liquidators, reducing the number of employees remaining to nine. Mr Klein’s employment continued.
The business was sold to ResPax on 7 August 2023. Mr Klein had been offered employment with ResPax on 4 August 2023, and his employment with Livn was terminated by the liquidators on 7 August 2023. Mr Klein’s employment with ResPax commenced on 8 August 2023.
The terms of Mr Klein’s employment with ResPax were described in the contract of employment with ResPax as being on a ‘fresh start basis’, relevantly meaning that ResPax would not recognise any service with Livn for the purpose of any entitlements associated with redundancy.
On 10 August 2023 Mr Klein made a claim to the Respondent’s Department under the FEG Act for entitlements including redundancy.
On 15 December 2023 the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 commenced. The application provisions in that Act limit the reforms it introduces to terminations of employment occurring after its commencement.
On 24 January 2024, a delegate of the Respondent decided Mr Klein was eligible for an advance under the FEG Act that did not include a component for redundancy.
On 15 February 2024, Mr Klein applied for internal review of the decision in relation to his claim. On 3 July 2024, a delegate affirmed the decision.
Legislative framework
The objects of the FEG Act include provision for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers where the employers are insolvent or bankrupt, the former employees employment ended in connection with that insolvency or bankruptcy and the former employee cannot get payment of entitlements from other sources: section 3 of the FEG Act.
Provision is made for redundancy pay to be included amongst the kind of employment entitlements that may form part of an advance. A person’s ‘redundancy pay entitlement’ is the amount of redundancy pay the person is entitled to under the ‘governing instrument’ from the employer for termination of the employment: section 6 of the FEG Act.
A ‘governing instrument’ for employment means any of: a written law of the Commonwealth, a State or a Territory, an award, determination or order that is made or recorded in writing, or a written instrument or an agreement (whether a contract or not): section 5 ‘governing instrument’ of the FEG Act.
As mentioned above, Mr Klein was a party to a written contract of employment dated 16 September 2020, which in turn called upon the provisions of the FW Act in respect of redundancy. An issue I must decide is whether that written agreement, incorporating the provisions of the FW Act in respect of redundancy is the ‘governing instrument’, whether the FW Act itself is the governing instrument, or whether there is another agreement that has taken the place of that written contract of employment or the FW Act.
If not, the FW Act provides for an employee to be paid redundancy pay by the employer if the employee’s employment is terminated (among other things) because of the insolvency or bankruptcy of the employer: paragraph 119(1)(b) of the FW Act. However, prior to the commencement of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, section 121 of the FW Act excluded ‘small business employers’ from the obligation to pay redundancy pay, and section 23 of the FW Act defined a ‘small business employer’ at a particular time to be an employer with fewer than 15 employees at that time, aggregating the employees of associated entities and disregarding casual employees unless they have been employed on a regular and systematic basis, and including the employee and any other employee of the employer whose employment is being terminated.
It must be recalled that on 28 July 2023, the liquidators terminated the employment of eight employees, reducing the number of employees from 17 to nine, and below the 15 referred to in section 23 of the FW Act. In this way, from 28 July 2023, Livn (including its associated entities) became a ‘small business employer’ for these purposes exempt from the obligation to pay redundancy pay under the FW Act. Livn was a small business employer on 7 August 2023 when Mr Klein’s employment from Livn was terminated. It is on this basis that the decision under review was reached by the Respondent’s delegate excluding redundancy pay from Mr Klein’s advance.
The nominative loophole from which the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 was birthed is key to the background circumstances of this matter. After its commencement on 15 December 2023, subsection 121(4) of the FW Act was inserted into the FW Act preserving an employee’s entitlement to be paid redundancy pay if the employer is a small business employer because one or more employees were terminated on or after the day that is six months before the employer became bankrupt or went into liquidation or an insolvency practitioner appointed due to the insolvency of the employer. Had that law reform applied to Mr Klein’s claim, his advance would have included a component for redundancy pay on the basis that either his contract of employment of 16 September 2020 was the governing instrument, or the FW Act was the governing instrument.
Is the FW Act the governing instrument?
The Secretary contends that the FW Act itself is the governing instrument in circumstances where the employment contract of 16 September 2020 does not, in its express terms, purport to regulate Mr Klein’s entitlement to redundancy pay other than by reference to the FW Act, which are minimum statutory standards in any event.
Although a somewhat academic point, and my conclusion is subject to the detailed consideration below as to whether any other agreement supervenes, I accept the logic of the Secretary’s contention in this regard and agree that the governing instrument is the FW Act itself (in accordance with subsection 5(a) of the FEG Act) and not the contract of 16 September 2020. If the FW Act in force at the time of Mr Klein’s termination is the governing instrument for the purposes of the FEG Act, the mechanism described above would mean that Mr Klein does not have an entitlement to redundancy pay because Livn was a small business employer on the day of Mr Klein’s termination of employment from Livn. No other issue was taken by Mr Klein in relation to the calculation of his advance.
Mr Klein argues that representations and undertakings were made to him by the administrators / liquidators that should serve as alternative and subsequent agreements. If Mr Klein’s arguments were accepted in this regard, it would mean that representation or undertaking would amount to an agreement and would be then the governing instrument in accordance with the definition of ‘governing instrument’ at section 5 of the FEG Act. It would therefore be necessary for me to find that such a representation or undertaking was made amounting to an agreement, but it would also be necessary to identify what the terms of that agreement are.
It is useful to acknowledge that at the heart of Mr Klein’s grievance in this regard is that by continuing to work for Livn after it went into administration, at the request of the administrators, and in order to put the business in the best position for sale, he had unknowingly acted contrary to his ultimate best financial interests. Had Mr Klein been terminated from his employment along with the first cohort of employees, he would have been paid a substantial redundancy component under the FEG Act which has not been incorporated into his advance under the FEG Act because the size of the workforce was later reduced by the administrators to that of a ‘small business’. Mr Klein draws links between the capacity for the business to be sold and the administrator’s remuneration, pointing out that his willingness to continue working was essential to the business’ sale. It was clear enough that Mr Klein feels misled and taken advantage of given the less favourable comparative financial outcome he considers he ultimately received because he continued to work for Livn. I have followed Mr Klein’s grievances in this regard as he articulated them, but it is not my role to either endorse them or reject them. I assure Mr Klein that I have understood his perspective.
Mr Klein refers to verbal and written reassurances provided by the administrators to employees during the course of the administration which he submits gave rise to the creation of a new agreement that should be seen to be the governing instrument for the purposes of the FEG Act. I turn therefore to the evidence regarding the communication between the administrators and the employees, including Mr Klein.
The same day as the administrators were appointed, a video meeting was convened between Livn’s 17 employees and the administrators.
Mr Klein attended the meeting. In his evidence, Mr Klein described being asked by the administrators if he would stay to ‘keep the lights on’, which he agreed to do. Mr Klein submits that his duties changed during the administration, and his salary was paid by the administrators. Mr Klein did not however ultimately maintain a foreshadowed argument that his employment had been terminated at this point, and accepts that his employment was terminated only on 7 August 2023. For completeness, given it is no longer in issue, I find that Mr Klein’s employment was terminated on 7 August 2023, and not on any earlier date.
If Mr Klein’s case that a subsequent agreement was formed that was capable of being the governing instrument is to be accepted, the creation of that agreement and the articulation of its terms must be seen to have taken place at either an informal meeting between the administrators and the employees of Livn on 22 June 2023, at subsequent statutory meetings of the administration on 4 July 2023 and 27 July 2023, or in staff circulars and individual email correspondence sent to Mr Klein during the period he worked with Livn while under administration or in liquidation.
The meeting of 22 June 2023
In his statutory declaration of 28 February 2024[1] Mr Klein said that at the meeting of 22 June 2023, the administrators (specifically Mr Resnick) had assured the employees that all entitlements including annual leave, long service leave and redundancy would be protected regardless of the outcome of the administration, and entitlements would transfer to any purchaser or would be protected by the FEG scheme.
[1] T24 folio 577
Statutory declarations of Mr David Skinner[2], Mr Alberton[3], Ms Dennis[4], Mr Jagla[5], Mr Nickless[6] and Mr Martinez[7] are essentially similar as to the content of the meeting of 22 June 2023.
[2] T24 folio 579
[3] T24, folio 585
[4] T24, folio 586
[5] Exhibit A2
[6] Exhibit A4
[7] Exhibit A5
Mr Jagla gave oral evidence at the hearing. He confirmed his attendance at the meeting of 22 June 2023, explaining he was unwell at the time undergoing treatment for cancer. Mr Jagla explained he was the Chief Technology Officer and a lead developer with Livn. He had been with the company from the beginning. The meeting with the administrators had come out of the blue, and he confirmed he and Mr Klein had been asked to keep the business operating so a buyer could be found. Mr Jagla’s recollection of the meeting was that it was an opportunity for the administrators to explain what was going on, concluding that two possible scenarios were described; either entitlements would be taken over by a purchasing company or entitlements would be covered by FEG. Mr Jagla’s understanding was that nobody would be out of pocket.
Mr Resnick, registered Liquidator, was called by the Secretary. Mr Resnick chaired the meeting as a partner at DVT Group. He has provided a written statement and gave sworn evidence at the hearing.
Mr Resnick was appointed as joint administrator on 22 June 2023 and subsequently appointed as joint liquidator on 27 July 2023. Mr Resnick said that the purpose of the meeting on 22 June 2023 was to provide general information regarding the voluntary administration process to the employees. He said that he told the employees that all pre-appointment entitlements would be preserved, by which he meant entitlements accrued before his appointment. At that meeting, ten staff were stood down. Seven staff, including Mr Klein were retained. The purpose of retaining what were recognised to be key staff was to ensure continuance of service to Livn’s key client and thereby put the business in the best possible position for sale.
In his statement[8], Mr Resnick drew a distinction between accrued entitlements, such as annual leave, and redundancy payment which is not an accrued entitlement. Mr Resnick says he did not make any assurances, promises or undertakings to any Livn employees that redundancy payments would be paid.
[8] Exhibit R2
In his oral evidence to the Tribunal, Mr Resnick confirmed he had identified Mr Klein on a list of staff to be retained in the administration, and confirmed he was required to keep the business operating to try and sell it as a going concern. In particular, Mr Resnick explained that a further motivation was to ensure that monies owned by Livn’s main client could be collected, which may be put in jeopardy if business operations ceased abruptly.
Mr Resnick described the meeting of 22 June 2023 as an informal meeting, explained in Ms Stojanoska’s evidence to be distinct from a formal or statutory meeting where certain resolutions would be passed in relation to the administration. Mr Resnick said that the purpose of the informal meeting was to provide general information regarding the voluntary administration process.
In his statement, Mr Resnick identified that a file note of the meeting had been prepared by a member of his staff, and the file note accorded with his recollection of the meeting. That file note is before the Tribunal[9]. It identifies the meeting of 22 June 2023 as an informal meeting / introduction. It recorded that Mr Resnick had advised that only some staff were to be retained with remaining staff to be stood down. The note records that ‘pre-appointment entitlements’ would be preserved, with an aim to sell the business which would include the transfer of employees. It states that if the company was placed into liquidation, and if there were insufficient funds available, employees may be able to seek assistance under the FEG.
[9] T29 folio 618 and 619
Ms Stojanoska was at the meeting, and was also called by the Secretary to give evidence. She also provided a written statement[10]. Ms Stojanoska is a senior manager at DVT, and held that role during the administration of Livn. She explained that her role was to manage and oversee the administration in relation to Livn.
[10]Exhibit R2
In relation to the meeting of 22 June 2023, Ms Stojanoska gave similar evidence to that of Mr Resnick, and specifically said that Mr Resnick had not made any assurances or promises or undertakings that any employees would be paid redundancy entitlements regardless of the outcome of the administration.
First meeting of creditors
Mr Klein contends that at the first meeting of creditors on 4 July 2023, he was given further assurances that accrued entitlements would be paid by the government if Livn went into liquidation if no buyer could be found.
Mr Resnick again states that he did not make any assurances, promises or undertakings that Livn employees would be paid redundancy entitlements. He said that where he said that the government would pay out all accrued entitlements, this was a reference to the possibility for Livn Group employees to make a claim under the FEG scheme, and he offered to assist employees do so.
Ms Stojanoska also stated that she attended the meeting, and no assurances, promises or undertakings were given that employees would be paid redundancy.
A recording of the meeting is available to the Tribunal, and I am satisfied that the references to what all witnesses have recounted was said in the meeting is generally accurate. The Secretary draws attention to the following extract, in which Mr Resnick said:
[After describing alternative scenarios associated with the sale of the company or of the business]
Any employee who hasn’t been signed to go along with the buyer, and there may be some of you, will then be helped by our office with their FEG applications to get their entitlements paid in to the maximum amount they can be. So likely in full for the majority of employees.
The minutes of the first meeting of creditors are before the Tribunal and accord with the evidence of Mr Resnick and Ms Stojanoska. In particular, the reference to the FEG scheme and entitlements are expressed as references to accrued entitlements[11].
Second meeting of creditors
[11] T9, folio196 specifically at 199
Mr Klein did not make any assertions as to specific representations made at the second meeting of creditors on 27 July 2023, but I acknowledge his general contention that the assurances previously given were repeated.
Mr Resnick said of that meeting that he referred to the FEG scheme in the event that the business was not sold and that it may cover successful applicants for outstanding wages, annual leave and redundancy entitlements where applicable, referring to the minutes of the meeting in this regard.
Ms Stojanoska also stated in her evidence that her recollection of the meeting was consistent with the minutes in that no assurances, promises or undertakings were made that any employees would be paid redundancy entitlements regardless of the outcome of any potential sale of the business.
The minutes of the second meeting of creditors are before the Tribunal and accord with Mr Resnick’s evidence and the evidence of Ms Stojanoska.[12] Specifically, in relation to redundancy entitlements, the minutes contain the proviso ‘where applicable’ when mentioning applications under the FEG Act.
Other communications
[12] T9, folio 261 specifically at 263
Mr Klein prepared a detailed chronology of various communications he had with other Livn staff, and the administrators, mainly Ms Stojanoska[13].
[13] Exhibit A1 and annexures
Mr Klein refers to a number of email communications sent that he characterises as repeat assurances of entitlements being frozen, the progress of negotiations with potential purchasers of the business that might involve some or all employees and their entitlements being transferred, and the examination of records to calculate entitlements.
Mr Klein described receiving an email with the subject heading ‘verified employee entitlements on 7 July 2023. That document is before the Tribunal.[14] The document sets out Mr Klein’s leave entitlements as at 22 June 2023, but also contains a section entitled ‘retrenchment – liquidation scenario’ incorporating payment in lieu of notice and redundancy, identifying an amount for 13 weeks redundancy in respect of the latter. That section appears under a heading ‘verified employee entitlements’. It can be seen that in context, this information had been provided to assist employees prepare Formal Proof of Debt claims for the administrators.
[14] T3, folio 77
The covering email to that document is also before the Tribunal (Exhibit A1 folio 43). The covering email states that the amount verified in relation to redundancy and Payment in Lieu of Notice is based on a liquidation scenario, and to date there were no redundancy or payment in lieu of notice entitlements outstanding.
Mr Klein also identified an issue relating to the offer of employment he received from ResPax, stating that to his surprise, the contract imposed a six-month probation and was on a ’fresh start’ basis despite him being in the role at Livn for 8 years. Mr Klein explained that his initial discussion with Ms Stojanoska had been on the basis that he would not receive a notice of termination from Livn as he was considered to have been transferred to ResPax, but on pointing out those unfavourable terms he did receive a notice of termination from Livn.
I have had regard to circulars distributed to Livn staff during the administration[15]. The first such circular of 23 June 2023 mentions that employees’ entitlements as at the date of the administrators’ appointment are frozen, but otherwise does not refer to the FEG scheme or redundancy payments specifically.
[15] The annexures to Exhibit A
An email sent to all Livn staff on 29 June 2023 refers to the administrators preparing summaries of ‘entitlements such as wages, leave and retrenchment’, and restates information provided at the meeting of 22 June 2023 that ‘in the event that the business is sold, such sale may include the transfer of employment of some or all employees, including outstanding employee entitlements’ (emphasis in original).
On 14 July 2023 a further email circular was sent to all Livn employees in which the administrators updated staff on the progress of negotiations for sale of the business. The email states: ‘Please note that the intention is for the purchasing entity to continue the employment of all or most of the employees of the group’.
Ms Stojanoska addressed the other communications sent to employees and to Mr Klein by during the administration. In this regard she confirmed that she was the primary liaison point between the staff of Livn and the administrators.
In her statement, she drew attention to the wording of general circulars to staff (such as that dated 23 June 2023) explaining that references to entitlements being frozen at the date of the appointment of administrators was a reference to accrued entitlements. Mr Stojanoska goes on to deny making any assurances, promises or undertakings regarding the payment of redundancy entitlements to Mr Klein in the course of her communications with him.
Specifically in relation to the email of 7 July 2023 and the Summary of Employee Entitlements, including an earlier email of 29 June 2023 informing employees that the document was in the process of being prepared, Ms Stojanoska explained that although an administrator is not required to prepare such summaries, it is DVT’s practice to do so to assist employees understand their position as a creditors.
Ms Stojanoska drew attention to the language used in the communications, emphasising the contingent nature of the information, and explained that the reference to ‘verified’ was a reference to the calculation by reference to books and records.
Ms Stojanoska explained in her statement that the purchaser had indicated to the administrator that employees would be transferred across with their service recognised, although the business sale agreement when executed indicated that transferring employees would commence on a fresh start basis.
Ms Stojanoska said she was aware of the small business employer threshold in the FW Act, but the purchaser had given no indication that it would not recognise the transferring employees’ service periods.
Representations made to the Respondent’s Department
Mr Klein draws attention to an exchange of correspondence between the Respondent’s Department and Ms Stojanoska[16]. The Department had written to Ms Stojanoska requesting responses to a number of common assertions arising in claims arising from the Livn administration. The circumstances identified included the representations made at the meeting of 22 June 2023, further verbal reassurances that entitlements were protected and the provision to employees of entitlement calculations.
[16] T28
I have examined the correspondence carefully, and am satisfied that the representations made to the Respondent’s Department are consistent with the evidence given to the Tribunal by Mr Resnick and Ms Stojanoska.
Consideration
In Secretary, Department of Employment and Workplace Relations v Dooley [2023] FCA 651 the Court found that the Tribunal had not provided adequate reasons to justify how an agreement between an employer and a union fell within the definition of a ‘governing instrument’ in circumstances where the Tribunal had not explained how the agreement remained binding after a subsequent Enterprise Agreement had been approved by the workforce, materially affected redundancy entitlements. The Court observed:
In particular, the Tribunal did not explain what the agreement…was, who the parties to it were and how it came, as matter of contract, or because of a statutory foundation, to create a legally enforceable right that an employee in Mr Dooley’s position could enforce. [51]
While I have understood and acknowledged Mr Klein’s grievance, my examination of the evidence does not demonstrate sufficiently clear particulars that an agreement amounting to a governing instrument was struck between the administrators and Mr Klein, either in the course of meetings or through correspondence. Indeed, in my view, an ‘agreement’ per se cannot be identified, let alone an agreement with the characteristics of enforceability referred to by the Court in Dooley.
The evidence demonstrates in my view that contrary to proposing terms or particulars of agreement, the administrators provided general information to the employees at the meeting of 22 June 2023 about the administration process. There is really very little divergence in the evidence as to what was said at that meeting, and I find that Mr Resnick provided a generally accurate summary of the circumstances in which the employees found themselves pertaining to entitlements at that time. It must be remembered that at that time, no employees had been terminated and Livn was not a small business employer. I am satisfied that Mr Resnick’s dissemination of information on that occasion cannot be construed as the proposal of the terms of an agreement. There is not, in my view, sufficient particularity or acceptance of terms for what was said to be construed as an agreement.
It is clear that Mr Klein and his witnesses interpreted the information that was provided as an assurance as to their entitlements at large, and therefore, the highest criticism that may be made is that the information that was provided was provided with a level of generality that did not foreshadow the particular contingent turn of events which ultimately meant that Mr Klein did not have an entitlement to redundancy pay under the FW Act at the time his employment was terminated. I do not however view the provision of information at the meeting as misleading because it was, generally speaking, accurate. I do not construe the absence of information about the particular chain of contingencies falling into place that operated to produce the result that Mr Klein did not have an entitlement to redundancy pay when he was terminated as the offer of an agreement, and indeed the circumstances defy the identification of what the terms of any such agreement might be so as they could operate to displace the FW Act as the governing instrument.
Subsequent representations and reassurances do not, in my view, operate to characterise the situation differently. The subsequent provision of information that was generally accurate, but did not contain information about the particular chain of contingencies falling into place that operated to produce the result that Mr Klein did not have an entitlement to redundancy pay likewise do not amount to the proposal or acceptance of an agreement, primarily because the particulars of any agreement cannot be identified.
Specifically in relation to the documents I have considered in the evidence such as the verified entitlements, the minutes of the meetings of creditors and the circulars to the employees, I have noted that the language used supports Mr Resnick’s evidence and Mr Stojanoska’s evidence that they did not make any assurances, promises or undertakings that Livn employees would be paid redundancy entitlements, and moreover did not offer an agreement amenable to acceptance and subsequent enforceability that might amount to a governing instrument for the purposes of the FW Act.
I am not satisfied that there was any agreement brought into existence in the course of Livn’s administration or liquidation, insofar as Mr Klein was a party. I find therefore that at all material times, the applicable governing instrument remained the FW Act in respect of redundancy pay, unfortunately inclusive of the ‘loophole’ only subsequently reformed by legislation that has disadvantaged Mr Klein so significantly.
In reflecting on the evidence overall, to identify that an agreement existed capable of being the governing instrument, I consider I would need to be able to articulate, on the basis of the evidence, what the particulars precisely were of any such agreement in relation to redundancy pay. I am unable to do so, primarily because I am unable to identify any meeting of minds as to terms amounting to an agreement from the evidence. I see only general information that was largely accurate, but unfortunately fell short in also describing the ultimate contingency that transpired in Mr Klein’s particular circumstances in light of the continued existence of the ‘loophole’.
Finally, in the course of his opening remarks, Mr Klein invoked the notion of promissory estoppel as a potentially relevant legal principal to apply in considering his case. Although the argument was not developed to any extent, I have considered all the circumstances against that legal doctrine as enunciated in Walton Stores (Interstate) Ltdv Maher (1988) 164 CLR 387. The doctrine is generally inapplicable to the review of decisions arising out of claims for statutory entitlements, such as those created by the FEG Act, which must be assessed and determined by reference to the terms of the statute. However, for completeness, and having regard to the doctrine as enunciated in WaltonStores my findings in this matter may also be reframed in that context as a finding that I am not satisfied that any promise or representation was made, and nor did the administrators / liquidators create or encourage an assumption that a contract was to come into existence, and it would follow that I am not satisfied that it would be unconscionable having regard to the administrators / liquidators conduct for any such promise pertaining to redundancy pay to be ignored.
Conclusion
As I am not satisfied that there was a subsequent agreement of any kind pertaining to Mr Klein’s employment to Mr Klein’s contract of employment with Livn of 16 September 2020, it follows that I find that the governing instrument for the purposes of the FEG Act is the FW Act, in respect of Mr Klein’s entitlement to redundancy pay.
It was not in issue that Livn was a small business as defined in the FW Act at the time of Mr Klein’s termination, 7 August 2023. It follows that under the provisions of the FW Act, Mr Klein did not have an entitlement to redundancy pay.
The Respondent’s Department’s decision to pay Mr Klein an advance under the FEG Act excluding a component for redundancy pay was therefore correct, and the decision under review is affirmed.
Date(s) of hearing: 18 and 19 September 2025 Counsel for Respondent: Ms J Vetter Solicitors for the Respondent: HWL Ebsworth
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