Megan Dellar v Beach House Taverns Pty Ltd

[2011] FWA 4712

[2011] FWA 4712

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Dellar
v
Beach House Taverns Pty Ltd
(U2010/3183)

COMMISSIONER BISSETT MELBOURNE, 12 AUGUST 2011

Application for unfair dismissal remedy.

[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Megan Dellar for relief from unfair dismissal.

[2] The actual employer of Ms Dellar at the time of the termination of her employment is not clear, although it does seem that the employer is now in administration. Ms Dellar’s contract indicates that she was employed by Billy’s Beach House. Her payslips indicate that she was paid by Beach House Taverns Pty Ltd. A company search suggests that Billy’s Beach House Hotel Pty Ltd and Beach House Taverns Pty Ltd are previous names of the same company. The company is now known as Dampars Pty Ltd.

[3] Ms Dellar commenced working for the company on or around 24 May 2010. Her employment was terminated on 29 December 2010.

[4] The matter was first listed for conciliation where the employer failed to attend. It was subsequently listed for arbitration.

[5] The matter was listed for hearing on 28 March 2011. The respondent employer failed to attend. The Applicant did attend. I decided to proceed with the hearing of the matter.

[6] Following the hearing, transcript was automatically sent to the last known address of the employer. By letter dated 1 June 2011, a company called SAS Solutions & Restructuring Pty Ltd (SASSR) responded to the content of transcript. SASSR indicated that they are the ‘business advisers to the Rex Williams Family Group of businesses.’ They advised that the correct employer of Ms Dellar is Billy’s Beach House Hotel Pty Ltd until it went into administration on 12 December 2010. At that time apparently staff were informed that their employment had been terminated and that they would be ‘on trial until such time as the incoming management decided who or if any of the staff they would offer employment to.’ SASSR also attached to its letter a statement of Ms Kim Tucker, the accounts manager of Beach House Hotel, and Mr Robert Williams, the Managing Director and owner of the Beach House Hotel. The statements refuted some material provided to me by Ms Dellar. The basis on which SASSR provided any submission in this matter is not clear given that the company is in administration.

[7] On 8 June 2011, having determined through a company search who the administrator for the company was, I wrote to the external administrators. I sought clarification as to the status of the company and details as to who the employer of Ms Dellar was at the time of the termination of her employment. Despite repeated undertakings to respond to my correspondence the administrator has not done so and to that extent the only evidence that the company is even in administration is the statement of SASSR and the existing company search information.

[8] My capacity to determine this matter is frustrated by the lack of information from the administrator as to what actions were taken, and by whom, to terminate the employment of employees at Billy’s Beach House Hotel. Further, contrary to what SASSR provided there is no evidence that Ms Dellar was aware her employment with Billy’s Beach House Hotel was terminated nor that Ms Dellar signed any employment form agreeing to employment on a three month trial.

[9] Despite this uncertainty, it is clear that Billy’s Beach House Hotel Pty Ltd (at least) is in administration. There have been a number of decisions of Fair Work Australia that have considered the capacity of Fair Work Australia to proceed to hear a claim for unfair dismissal brought against a company in administration. 1 Each of these considered the affect of provisions of the Corporations Act 2001 (the Corporations Act) which state:

500 Execution and civil proceedings

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property or books in his, her or its hands to which the company is prima facie entitled.

[10] Subject to evidence that there has been the passing of a resolution for voluntary winding up of the company it appears that I have no power to proceed to determine the application of Ms Dellar. I respectfully adopt the conclusions reached by McKenna C, Williams C and Roberts C in the decisions referred to above: that an application for an unfair dismissal remedy under the Act is an ‘action or other civil proceeding’ within the meaning of s.500 of the Corporations Act that can only proceed with permission of the Court.

[11] I do not intend to dismiss this application. The matter can proceed should Ms Dellar receive the permission of the Court to do so. The application is adjourned.

COMMISSIONER

Appearances:

Ms Megan Dellar appearing on her own behalf.

Hearing details:

2011.

Brisbane and Perth.

May 10

 1   Julie Frances Lawler v ABC Development Learning Centres Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)[2010] FWA 7679; Ms Karen Debra Stocker v ABC Development Learning Centres Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed)[2011] FWA 2326; Sashia Lee Golding v Speedy Plants Pty Ltd ATF The Speedy Plants Trust (Liquidator Appointed)[2011] FWA 4535.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR512296>