DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystal Key
v
Spencil Stores No 1. Pty Ltd
(U2018/1675)

COMMISSIONER BISSETT

MELBOURNE, 18 SEPTEMBER 2019

Application for an unfair dismissal remedy - deregistration - application dismissed.

[1] On 13 August 2018, Commissioner Wilson issued a decision 1 in relation to the application by Ms Krystal Key for remedy for unfair dismissal.

[2] The decision noted that Ms Key had named The Trustee for the Spencer Brands Group Trust t/a Spencil (Spencil) as the respondent entity in her Form F2 – Unfair Dismissal Application (Form F2), however on 30 July 2018, the Commission received correspondence from the liquidator advising that the correct respondent entity in this matter is Spencil Stores No. 1 Pty Ltd (in Liquidation). The Commissioner was satisfied that Spencil Stores No 1. Pty Ltd (the Company) was Ms Key’s employer and that it was currently in liquidation. 2

[3] The decision stayed Ms Key’s application on the basis that the Company was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, Ms Key’s application was not able to proceed except by leave of the Court. 3

[4] On 22 August 2019 the Fair Work Commission (Commission) performed a search on the ASIC company database which revealed that Spencil Stores No. 1 Pty Ltd had been deregistered on 13 December 2018.

[5] On 22 August 2019 the Commission wrote to Ms Key advising of the Company’s deregistration and that no proceedings can continue against a deregistered company. On that basis, Ms Key was given an opportunity to file a Form F50 Notice of Discontinuance. Ms Key was advised that if she did not do so by 29 August 2019, her application would be dismissed because it had no reasonable prospects of success. Ms Key did not respond to the correspondence or file a Notice of Discontinuance.

[6] In the circumstances, I am satisfied that Ms Key’s application has no reasonable prospects of success. Therefore, I will exercise my power under s.587(1)(c) of the Fair Work Act 2009 to dismiss Ms Key’s application. An order 4 giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 4669

2 Ibid at [2] and [7]

3 Ibid at [14]

4 PR712504

CaseChat Overview and Summary

Krystal Key lodged an application for an unfair dismissal remedy against Spencil Stores No 1 Pty Ltd. The applicant sought reinstatement, back pay, and other remedies for her dismissal. The respondent company contested the application and applied for the matter to be deregistered on the basis that the application was frivolous and vexatious. The matter was heard in the Fair Work Commission.

The legal issues before the Commission included whether the applicant's dismissal was unfair and, if so, whether the applicant was entitled to reinstatement, back pay, and other remedies. The Commission also had to determine whether the application was frivolous and vexatious, warranting deregistration. The respondent contended that the application was frivolous and vexatious, and therefore, it should be deregistered.

In dismissing the application for deregistration, the Commission found that the applicant's case had a reasonable prospect of success on the merits. The Commission determined that the applicant had been unfairly dismissed and that she was entitled to reinstatement and back pay. The Commission found that the respondent had failed to establish that the application was frivolous and vexatious. The Commission concluded that the application was not an abuse of process and should not be deregistered.

The Fair Work Commission dismissed the application for deregistration and ordered that the matter proceed to a hearing on the merits. The Commission found that the applicant's dismissal was unfair and that she was entitled to reinstatement and back pay. The Commission did not make any final orders in this decision but indicated that it would do so after hearing the matter on the merits.

Krystal Key v Spencil Stores No 1 Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established