Mark Garwood v Damann Pty Ltd

[2019] FWC 5961

[2019] FWC 5961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Garwood
v
Damann Pty Ltd
(U2019/5336)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 AUGUST 2019

Application for an unfair dismissal remedy – failure by the Respondent to engage with the application, directions or hearing processes – Respondent placed into voluntary liquidation five days before hearing – Commission prohibited from continuing to deal with Application.

Procedural Background

[1] On 12 May 2019, Mr Mark Garwood applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (unfair dismissal application). In his Form F2 – Unfair dismissal application (Form F2), Mr Garwood identifies the Respondent to his application as the Damann Pty Ltd (the Respondent) and indicated his Representative was Australian Dismissal Services (ADS). Mr Garwood seeks compensation in lieu of reinstatement.

[2] Mr Tom Babaniotis was listed as the contact person for the Respondent in the Form F2 and contact details for him were provided by Mr Garwood. These included a telephone landline, a mobile phone number and a postal address.

[3] After it was sent the first correspondence from the Commission dated 3 June 2019, the Respondent spent a considerable period of time ignoring the unfair dismissal application. This first correspondence enclosed:

•  a Notice of Listing advising that a conciliation by telephone before a Fair Work Commission conciliator was to take place at 2.15pm on 24 June 2019;

•  the Form F2; and

•  a Form F3 – Employer response to unfair dismissal application (Form F3).

[4] On 19 June 2019, a telephone call was made by the Commission to the Respondent in order to confirm the Respondent’s contact person for the conciliation and follow up the Form F3, which was not yet submitted. The receptionist for the Respondent advised that the message would be passed on but requested a follow-up email as Mr Babaniotis was in meetings for most of the week. As such, a letter dated 19 June 2019 was sent to Mr Babaniotis’s email address confirming the time and date of the telephone conciliation. This letter also included a reminder regarding the requirement of Rule 19 of the Fair Work Commission Rules 2013 that the Form F3 must be completed, filed with the Commission and served on Mr Garwood. Another Form F3 was attached to the letter to facilitate this.

[5] There was no one in attendance for the Respondent at the telephone conciliation on 24 June 2019. The Commission conciliator telephoned the Respondent and the file note of the conversation he had, records the following:

“A female answered the number Identifying “unlcear” transport company”. When I asked if I could speak to Tom Babanitios, she said she he did not work for Damann anymore. I said I was ringing about an unfair dismissal claim and she aked if it was about “Mark Garwood”. She said that she didnt think if was right that he could make a claim with anyone talking to the employer. She then proceed to tell me what he was paid on termination. I asked her if she was associated with Damann Pty Limited. She said no and declined to say what her current position was. I asked her if i could make a file note and confirming her name and the company she worked for, She told me it was none of my business and hung up.”

[6] Later on 24 June 2019, the Commission wrote to the parties and invited them to request a re-listed conciliation by telephone. This was emailed to the Respondent but no response was received. ADS responded on behalf of Mr Garwood, requesting another conciliation conference but stated that in lieu of this, the unfair dismissal application should proceed to arbitration.

[7] On 28 June 2019, an email was sent by the Commission to Mr Babaniotis. It stated the unfair dismissal application was to be listed for an Arbitration Conference/Hearing and noted that the Respondent had not yet filed a Form F3. Mr Babaniotis was requested to complete the Form F3, which was again attached, and advised that if no Form F3 was filed by 12pm on 2 July 2019, the matter would be listed for an Arbitration Conference/Hearing.

[8] As there was no response from the Respondent, Directions were issued in a Notice of Listing dated 2 July 2019 requiring the parties to file material ahead of the Arbitration Conference/Hearing listed to commence on Monday 26 August 2019. The Notice of Listing was sent to Mr Babaniotis’ email address on 2 July 2019. The Form F2 and the Notice of Listing were also sent to the Respondent’s postal address on 2 July 2019 via express post. The Australia Post tracking notes subsequently received stated, “Awaiting collection at RENMARK NORTH CPA Thu 4 Jul.”

[9] Telephone contact was made with Mr Babaniotis later on 2 July 2019. When he was advised that he had been named as the contact person in the unfair dismissal application, Mr Babaniotis stated that Mr Garwood had not worked for him and he did not know why Mr Garwood has put him down as the contact person. When asked whether he knew Mr Garwood, Mr Babaniotis stated he did but that Mr Garwood had not worked for him. Mr Babaniotis was then asked whether he knew who was the most appropriate person at the Respondent company to contact and it is recorded in the Commission file note that Mr Babaniotis answered by stating he did not know.

[10] Mr Babaniotis was then advised that if he did know, it would be in their interests to make contact with the Commission, given proceedings had been commenced against it. This prompted Mr Babniotis to inquire as to which company was being referred to. Having been advised it was Damann Pty Ltd, it is recorded in the Commission file note that Mr Babaniotis stated that he thought that entity had “gone broke or into liquidation or something.”

[11] The Commission then contacted Ms Amanda Millar of ADS, the representative for Mr Garwood, by telephone and email. In an email sent at 12.43pm on 12 July 2019, Ms Millar was advised:

“As per our conversation this afternoon, the Respondent in the above matter has not filed an F3 Employer Response.

The contact person Tom Babaniotis has advised the Commission that the Applicant has not worked for him. They did not provide an alternative contact and suggested the company may have gone into liquidation. I have completed an ASIC search and confirmed the company has not gone into liquidation.

Could you please confirm that Damann Pty Ltd’s correct contact person is Tom Babaniotis on [phone] and 0418 839 726?

Could you also please confirm that 57 CULGOA STREET, RENMARK NORTH SA 5341 is the correct service address for the Respondent?

Does the Applicant have any other contact person the Commission can contact?”

[12] Ms Millar responded in an email sent on 17 July 2019:

“The Applicant is confirming the Respondent’s details. The payment summary for 2015/2016 confirms the employer as Damann Pty Ltd (ABN 80-160-103-882) and it was signed by Amelia Babaniotis (Tom’s wife).

The payment summaries since the then have been provided directly to the ATO – but the Applicant will have his tax agent confirm the details for the latest year (2018/20-19) which he understands has just been lodged by the company.

The previous payslips are in the name of Babs Harvesting & Contracting Pty Ltd – T/A Todiam Freightliners Pty Ltd (ABN 16095773087). This company is also owned by Tom Babaniotis. The pay slips then changed over to Damann Pty Ltd.

The Applicant intends to proceed with his claim and will confirm the most recent pay summary details after meeting with his tax agent later today.”

[13] In compliance with the Directions, Mr Garwood filed his material on 22 July 2019 and it was sent to Mr Babaniotis’s email address on this day. The Commission has no record of the emails sent by the Commission to Mr Babaniotis’s email address as having been “undeliverable”.

[14] The Respondent’s outline of argument, statement(s) of evidence and document list were due by no later than noon on 12 August 2019. This was confirmed by a further Notice of Listing sent to the parties on 9 August 2019. By this time, the Respondent had already had over five weeks to prepare its materials for the Arbitration Conference/Hearing. This further Notice of Listing also outlined that the Arbitration Conference/Hearing would now commence on Tuesday 27 August 2019. In the case of the Respondent, this Notice of Listing was sent to the email address of Mr Babaniotis and the postal address of the Respondent.

[15] On 12 August 2019, I caused a Notice of Listing to be sent to the parties by email, listing the matter for a telephone Mention at 10.15am on Wednesday 14 August 2019. I informed the parties that the purpose of the Mention was to provide the parties with an opportunity to discuss any procedural matters ahead of the Arbitration Conference/Hearing. I also advised the telephone Mention would not be a hearing of the substantive merits of the unfair dismissal application, such that witnesses were not required to attend.

[16] The telephone Mention proceeded before me on 14 August 2019. Mr Garwood was in attendance and sought permission, under s.596 of the Act, to be represented at both the Mention and the Arbitration Conference/Hearing by a paid agent, Ms Millar of ADS. I considered oral submissions on this issue from the parties at the Mention. After weighing up the circumstances and the considerations in s.596 of the Act, I determined that allowing the Mr Garwood to be represented by a paid agent would enable the matter to be dealt with more efficiently, taking into account its complexity. I therefore decided to exercise my discretion to grant permission for Mr Garwood to be represented at both the Mention and the Arbitration Conference/Hearing.

[17] Ms Fiona Holme, Administrator, ended up attending on behalf of the Respondent. This was because my Associate had been advised that the individual who may have been able to provide information to the Commission on behalf of the Respondent was not available due to a death in the family. My Associate was also advised that Mr Babaniotis was not available.

[18] At the telephone Mention, I outlined for Ms Holme the procedural history of the matter. In particular, I advised that the Respondent had been sent the Directions in the Notice of Listing dated 2 July 2019 requiring the it to file its material by 12 noon on 12 August 2019, before indicating what would be occurring next:

“So what the situation is, Ms Home [sic], is that this matter is listed for hearing. That hearing is going to take place on 27 August here in Melbourne, and at the moment there is material that has been filed on behalf of Mr Garwood which the Commission can take into account, but there is absolutely nothing on the Commission’s file from Damann Pty Ltd - and when I say nothing, I mean nothing.

It’s open to Damann Pty Ltd to respond to this application. It has been. If, for example, the wrong employer has been named that could have been pointed out by Mr Babaniotis. If he maintains that this company did not employ Mr Garwood, he could make that submission, or he could response to the allegations that are made by Mr Garwood, but at this stage there’s nothing.

I am going to proceed with the hearing on 27 August because there’s been nothing to indicate to me a reason why I should not. It will of course be a requirement for Mr Garwood to establish to my satisfaction who his employer was, what occurred that he says resulted in his termination, and whether it’s appropriate that I make a finding that he was unfairly dismissed, and if so, whether some sort of a remedy should be awarded to him by me, but as things currently stand, that looks like it may be occurring with just Mr Garwood in the room, and, if he seeks to be represented by Ms Miller at that time, Ms Miller.

So, Ms Home [sic], I understand from my associate there seems to be all sorts of things happening at the company and some unfortunate circumstances related to some of the people working at the company, but there’s been no explanation given this morning that indicates why Mr Babaniotis is not responding to correspondence from the Commission and why he’s not available this morning.

So the issues related to other people involved in the company aside, I haven’t heard anything from Mr Babaniotis, and what I will indicate to you now is that you should report to whoever it is in the company who has ultimate responsibility for this that there is this matter on foot, that it will be proceeding to hearing on 27 August, and unless the company wants that to take place entirely in its absence, then they ought to make contact with my Chambers immediately and start providing some explanations.

At the moment the Commission has been sending material to the contact details of Mr Babaniotis at, as I mentioned, (email address supplied). There’s been no bounce-back emails from that so I’m just assuming that they’re being ignored unless there’s any other explanation for it which hasn’t been put before me, but this is something that I’m going to ask you to report to whoever it is that might have responsibility for this, because I am going to be proceeding on the 27th. All right. Is there any questions you have, Ms Home?

MS HOME [sic]: No. Not at this point, no.

THE DEPUTY PRESIDENT: All right, thank you. Is that email, to your knowledge, a correct email?

MS HOME [sic]: It goes to the director of the company, yes.

THE DEPUTY PRESIDENT: Yes, all right. So I’m going to take it that he’s on notice that all this is occurring, and if you could inform the director of the company that we’ve had this conversation and that is what is happening.” 1

[19] I then summarised the state of affairs as follows:

“Ms Home [sic], the material that Mr Garwood is seeking to rely on at the hearing comprises an outline of submissions, a witness statement and a list of documents. They are dated 22 July, and my records are that they have been received by the Commission on that date and they have also been sent to that email address (address supplied), all those materials.

So they are, it would appear to me, to be in receipt - or the company would appear to be in receipt of them. That’s what the company needs to respond to for the hearing, and of course, first things first, if they are seeking to file anything, well, they’re already out of time and they’ll need to make application to me to have some material accepted at this late stage prior to the hearing.

But more than anything else, if the company wants to defend this unfair dismissal application it ought to make arrangements to present at the hearing, or the arbitration, on Tuesday, 27 August at 10 am at the Fair Work Commission in Melbourne at 11 Exhibition Street.” 2

[20] Before concluding the telephone Mention, I asked Ms Holme to convey what she had been advised during the telephone Mention to Mr Babaniotis.

[21] In summary, prior to the Arbitration Conference/Hearing on 27 August 2019, there were:

•  three requests in writing from the Commission requesting that the Respondent complete a Form F3, together with a phone call;

•  two Notices of Listing outlining directions for the Respondent to file and serve its material;

•  the telephone call conducted with Mr Babaniotis on 2 July 2019; and

•  the telephone Mention, during which the nature of the matter and the procedural obligations were explained to an employee of the Respondent.

[22] Despite this correspondence and contact, there was no material filed on behalf of the Respondent at any stage.

Arbitration Conference/Hearing on 27 August 2019

[23] The Arbitration Conference/Hearing was listed for 27 August 2019 before me. Mr Garwood attended and was represented by Ms Millar.

[24] At the appointed commencement time of 10.00am, there was no representative from the Respondent present in the hearing room. Contact was made with the Commission’s Melbourne Registry to enquire as to whether any representative from the Respondent had attended the Registry counter. The advice received was that no one had done so. Then followed attempts to speak with Mr Babaniotis. My Associate firstly was able to speak with Ms Holme. In this conversation, Ms Holme advised that Mr Babniotis had lost his nephew in a tragic accident and there had been a funeral on Saturday 24 August 2019. Ms Holme said that Mr Babaniotis was in mourning and not at the office.

[25] My Associate then spoke with Mr Babaniotis, having called him on his mobile phone number. In this conversation, Mr Babaniotis advised there had been a death in the family. In relation to the Respondent, Mr Babaniotis advised that he had shut down the Respondent and he had laid off 85 workers. When asked whether he could provide details of the Liquidator, Mr Babaniotis replied that he was not in the office. When asked the reason for the Respondent’s non-compliance with Directions and its non-attendance, Mr Babaniotis said he would require “a couple of weeks” to respond. Mr Babaniotis also declared Mr Garwood “would not get anything” from the Respondent because it had been shut down.

[26] Having been briefed in relation to Mr Babaniotis’ comments, I was able to establish through a search of media reports that there had been a fatal road accident on 8 August 2019 that involved a man who appears likely to have been a relative of Mr Babaniotis.

[27] I also conducted a search of the ASIC website and ascertained that on Thursday 22 August 2019, the Respondent may have passed a resolution to voluntarily wind up the company and had appointed a liquidator.

[28] Despite these circumstances, having regard to the Commission’s prior attempts to contact the Respondent, the correspondence I have outlined above and the discussion I had with Ms Holme at the telephone Mention, I considered I had no option but to proceed to discuss the future conduct of the matter with Mr Garwood, in the absence of a representative from the Respondent.

[29] At the commencement of this discussion, recorded on transcript, Ms Millar indicated that her enquiries had also led her to conclude that the Respondent had been placed into voluntary liquidation.

[30] I explained to Mr Garwood that it appeared that his unfair dismissal application was now subject to the operation of s.500(2) of the Corporations Act 2001 (the Corporations Act), which provides as follows:

“(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

[31] I advised Mr Garwood that taking into account the provisions set out in s.500(2) of the Corporations Act, I was of the view that his unfair dismissal application could not proceed any further in the Commission, except by leave of a Court.

[32] In coming to this view, I had considered s.58AA of the Corporations Act, which provides the following definition in relation to the meaning of “court” and “Court”:

“(1) Subject to subsection (2), in this Act:

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(c) the Family Court of Australia;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.”

[33] Further, having had regard to this provision and the decision of the Full Bench of the Australian Industrial Relations Commission in Smith v Trollope Silverwood & Beck Pty Ltd, 3 I was satisfied that the Commission is not a “Court” and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.

[34] Finally, I had taken note that in Silalahi v CMI Industrial (Forge), 4 the then Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[35] Mr Garwood was understandably very frustrated at this outcome and stated that in his opinion, the liquidation had occurred by design. It is not possible to reach a conclusion in relation to this allegation but I will observe that even before the tragic death of his family member, Mr Babaniotis and other employees from the Respondent appear to have elected to consciously deflect and ignore this unfair dismissal application. 5 There was also no attempt by Mr Babaniotis to initiate contact with the Commission, either upon the Respondent’s materials falling due or in relation to the telephone Mention and subsequent Arbitration Conference/Hearing. This was despite there being, by then, a reasonable explanation for his failures to comply and attend. What little Mr Babaniotis appears to have been able to do, throughout this entire process over the past three and a half months, is take the necessary steps to place the Respondent into voluntary liquidation five days before the Arbitration Conference/Hearing and declare Mr Garwood “would not get anything.”

Conclusion

[36] As the Respondent appears to have passed a resolution to voluntarily wind up the company, the Commission is prohibited from continuing to deal with Mr Garwood’s unfair dismissal application except by leave of a relevant Court. At this stage, Mr Garwood’s unfair dismissal application file will be kept open pending further advice as to the status of the Respondent. Such advice should be provided to the Commission’s Unfair Dismissal Case Management Team at first instance, whereupon it will be brought to my attention. The file will then be re-allocated to me for further consideration.

DEPUTY PRESIDENT

Appearances:

Ms A Millar, on behalf of Mr Garwood.

Hearing details:

2019.

Melbourne.

27 August.

Printed by authority of the Commonwealth Government Printer

<PR711742>

 1   Transcript 14 May 2019 at PN 22- PN 31.

 2   Transcript 14 May 2019 at PN 49- PN 51.

 3 (2003) 142 IR 137.

 4   [2012] FWA 7275 at [11]-[16].

 5   See above at [4], [5] and [8]-[10].