Mr Laurence Farrugia v Building Technology Integrators Pty Ltd

[2011] FWA 5263

[2011] FWA 5263

FAIR WORK AUSTRALIA

DECISION

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

Mr Laurence Farrugia
v
Building Technology Integrators Pty Ltd
(U2010/14769)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 9 AUGUST 2011

Application for unfair dismissal remedy.

[1] Mr Laurence Farrugia was employed by Building Technology Integrators Pty Ltd (BTI) from 18 December 2009 until 26 November 2010, the date on which he alleges his employment was terminated in circumstances which were harsh, unjust or unreasonable.

[2] On 6 December 2010 Mr Farrugia lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (“the Act”). A previous jurisdictional determination 1 had found that he had completed the “minimum employment period,” as a result of a transfer from Austcoms Group (NSW) Pty Ltd to BTI, an associated entity within the meaning of the Act. Accordingly, he was found to be protected from an unfair dismissal.2

[3] BTI did not provide any response to Mr Farrugia’s claim. On the basis of Mr Farrugia’s submissions I find that Mr Farrugia’s termination was harsh, unjust or unreasonable.

[4] Mr Farrugia is not seeking reinstatement, having obtained alternative employment soon after the termination of his employment took effect and reinstatement is not in any event appropriate because BTI went into liquidation on 4 May 2011. Were I able to proceed with this application I would find that compensation was appropriate in all the circumstances of this case.

[5] For convenience I will set out the matters which I would have taken into account pursuant to s392 (2) of the Act.

[6] Mr Farrugia’s entire period of service, being 16 months with BTI, should be taken into account.

[7] It is likely that Mr Farrugia, had he not been dismissed, would have continued in his employment until BTI went into liquidation on 4 May 2011.

[8] Mr Farrugia’s gross weekly wage at date of termination was $938.78.

[9] I have considered Mr Farrugia’s prompt action to mitigate his loss. Mr Farrugia was fortunate in finding alternative employment, albeit on an inconsistent basis, immediately after the date of his dismissal. He has provided evidence of remuneration earned.

[10] There are no relevant contingent events.

[11] Mr Farrugia was not paid his entitlement to notice. He ought to have been. Mr Farrugia was entitled to an additional 2 weeks pay in lieu of notice pursuant to s 117(3) of the Act. I would take this matter into account.

[12] Section 440D and s 500 of the Corporations Act 2001 (Cth) provide as follows:

s. 440D Stay of proceedings

(1)  During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:

(a)  with the administrator's written consent; or

(b)  with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

(2)  Subsection (1) does not apply to:

(a)  a criminal proceeding; or

(b)  a prescribed proceeding.

s. 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.

[13] Mr Farrugia’s application cannot proceed in the absence of the leave of a Court and subject to any terms a Court might impose. I have no power to further proceed to hear Mr Farrugia’s application and issue an order. Despite this, it is my view that Mr Farrugia’s application should not be dismissed but should be adjourned indefinitely. Should Mr Farrugia at some time obtain the permission of a Court to proceed, this application can be relisted and an order issued.

SENIOR DEPUTY PRESIDENT

 1   See Mr Laurence Farrugia v Building Technology Integrators Pty Ltd [2011] FWA 1285 (Senior Deputy President Hamberger)

 2   Fair Work Act 2009 (Cth), s382(a); s384(2)(b); s22(5-7).

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