Miss Wendy Elton v Acupuncture Australia Pty Ltd

[2015] FWC 1674

[2015] FWC 1674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Wendy Elton
v
Acupuncture Australia Pty Ltd
(U2014/7697)

DEPUTY PRESIDENT ASBURY BRISBANE, 11 MARCH 2015

Application for relief from unfair dismissal - application to vary order for compensation - compensation by instalments.

[1] In a Decision 1 issued on 4 February 2015, I found that Ms Wendy Elton was unfairly dismissed by Acupuncture Australia Pty Ltd, and awarded an amount of $29,070.00 (less tax) as compensation for Ms Elton’s unfair dismissal, to be paid by 25 February 2015. Acupuncture Australia is a Small Business Employer and an objection on the basis that the dismissal was consistent with the Small Business Fair Dismissal Code was dismissed.

[2] Acupuncture Australia has appealed the Decision and sought a stay. The application for a stay was heard by Senior Deputy President Richards on 27 February, and in a Decision issued on that date, was refused. 2 During the hearing in relation to the stay application, Mr Kwoh-Gain, on behalf of Acupuncture Australia, indicated that the scale of the amount ordered was such that he was unable to make a single payment at one time.

[3] His Honour pointed out the provisions of s. 393 of the Act and stated that:

“The Appellant is at liberty to approach the Member at first instance in this regard (though as indicated above the requirement to pay the amount in compensation came into effect on 25 February 2015).” 3

[4] On 1 March 2015, Mr Kwoh-Gain forwarded an email to my Chambers in the following terms:

“As you may be aware we lodged a Notice of Appeal on Tuesday, 24 February 2015, including an application for a stay on the Order.  A stay application was heard on Friday 27 February 2015 held by Senior Deputy President Richards. He decided not to grant a stay application.

This the first opportunity, Sunday night 1 March 2015, to reply.  The award of over $20,000 will have a significant negative effect on our cash flow, bringing the company to the brink of bankruptcy.  A collapse would affect not just mine but  all four share holders (a surgeon, a judge, a medical practitioner other than myself.)
The problem we have is that we are a very small business of two employees.  Our weekly sales average $12,000 including GST (to be paid).  Half of the sales (circa $6000 inc. GST, GST to be reimbursed) goes to suppliers (costs of goods sold), the gross wages of the employee are $2800 per week, payment to director is $1800, the GST amount to be paid is $1090, the GST amount to be re-imbursed is $545 .  That leaves $855.00 a week ($12000-$6000-$2800-$1800-$1090+$545), not accounting for other expenses and superannuation.

A very small business like ours can't come up with single pay cheque of over $20,000.   At best we may be able to make full payment in 3 instalments over 4 weeks (0, 2 weeks, 4 weeks).   We have made a payment of $8582 tonight Sunday 1 March 2015.  Two further payments shall be made on 15 & 29 March 2015.”

[5] That email was forwarded to Ms Elton and she was requested to provide her views in relation to Mr Kwoh-Gain’s request that the Order be amended to enable the amount to be paid in instalments.

[6] Mr Kwoh-Gain sent a further email as follows on 2 March 2015:

“According the Order, the gross amount is $29070.  The net amount after tax is $24,582.  We have paid $8582.  We will make two more instalment of $8,000 each.

However, we are appealing/challenging the original Order amount through the Commission.”

[7] Ms Elton corresponded with the Commission on 3 March 2015 objecting to the amendment to the Order sought by Mr Kwoh-Gain. Mr Kwoh-Gain corresponded with the Commission on 5 March 2015 stating that Acupuncture Australia has a bank balance of $145.27 and an amount of $645.27 available. Mr Kwoh Gain also stated that he has had to resort to borrowing money to keep the business afloat and that the business could not afford to write a single cheque for $24,582.00 being the amount ordered to be paid to Ms Elton, less tax. Bank statements were provided to confirm these assertions.

[8] Mr Kwoh-Gain stated that an amount of $8,582.00 was paid to Ms Elton on 1 March 2015, as soon as possible after the stay application was refused. Ms Elton confirmed that she received that amount into her bank account on 2 March 2015. Mr Kwoh-Gain also indicated that his proposal was that two further amounts of $8,000.00 (Nett) would be paid to Ms Elton on 13 and 27 March respectively, so that Ms Elton would be paid the full amount ordered, less tax, by that date.

[9] A telephone hearing was conducted on 6 March 2015 to allow both parties to be heard in relation to the application to amend the Order. Mr Kwoh-Gain pressed the application and Ms Elton maintained her opposition.

[10] After hearing the submissions of the parties I determined that I would amend the Order in terms sought by Mr Kwoh-Gain on the basis that:

● Acupuncture Australia is a small business employer;
● The sum ordered to be paid to Ms Elton is significant;
● I am satisfied that the Company cannot pay the full amount in one instalment; and
● The instalments proposed by Mr Kwoh-Gain are spread over a reasonable period.

[11] I have taken into account that Ms Elton has been without income for a significant period of time, and that Mr Kwoh-Gain has apparently been in breach of the Order made on 4 February 2015. It is also the case that any action by Ms Elton to enforce the Order will probably not be able to be finalised prior to the date upon which Mr Kwoh-Gain seeks to pay the last instalment.

[12] Section 393 of the Act provides that:

“393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[13] Notwithstanding that Mr Kwoh-Gain did not make any submissions about the financial viability of the business during the hearing I should have made Mr Kwoh-Gain aware of the provisions of s. 393 of the Act prior to, or at the point the Order was made. The Order will be amended so that the amount of $29,070.00 (less tax) is payable in instalments as follows:

1. $10,148.00 to be taxed according to law on 1 march 2015;
2. $9,461.00 to be taxed according to law by no later than 13 March 2015; and
3. $9,461.00 to be taxed accordingly to law by no later than 27 March 2015.

[14] The amended Order will also provide that if any instalment is not paid on the due date, the full amount will become immediately due and payable. This term was agreed to by Mr Kwoh-Gain at the hearing on 6 March 2015. An amended Order will issue with this Decision.

DEPUTY PRESIDENT

 1   Elton v Acupuncture Australia Pty Ltd [2015] FWC 864.

 2   [2015] FWC 1394.

 3 Ibid at [34].

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