Ms Davina Coutinho v Colorado Group T/A Williams the Shoeman

[2011] FWA 5193

[2011] FWA 5193

FAIR WORK AUSTRALIA

DECISION

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

Ms Davina Coutinho
v
Colorado Group T/A Williams the Shoeman
(U2011/6307)

COMMISSIONER SIMPSON BRISBANE, 16 AUGUST 2011

Termination of employment.

[1] Ms Davina Coutinho was employed by Colorado Group T/A Williams the Shoeman (Colorado Group Ltd) from 5 December 2005 until 14 March 2011, the date on which Ms Coutinho alleges her employment was terminated in circumstances which were harsh, unjust or unreasonable.

[2] On 24 March 2011, Ms Coutinho lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (‘the Act’). For the purposes of s 382 of the Act, Ms Coutinho is protected from an unfair dismissal.

[3] Colorado Group Ltd filed a Form F3 in response to Ms Coutinho’s claim. However, on 27 June 2011, Colorado Group Ltd, through its representative, advised Fair Work Australia (‘FWA’) that it did not intend to contest the application and would not be filing materials in this matter. In its Employer’s Response, Colorado Group had also confirmed the Group was in administration and receivership. Colorado Group Ltd did not attend the hearing on 14 July, 2011 and has not provided any evidence to Fair Work Australia (‘FWA’).

[4] On the basis of Ms Coutinho’s evidence 1 I find Ms Coutinho’s termination of employment was harsh, unjust or unreasonable.

[5] Ms Coutinho is not seeking reinstatement and this is not appropriate in any event because Colorado Group Ltd have gone into liquidation. Were I able to proceed with this application I would find that compensation was appropriate in all the circumstances of this case.

[6] For convenience I will set out the matters which I would have taken into account pursuant to s 392(2) of the Act.

[7] Ms Coutinho’s entire period of service, being 35 months with Colorado Group Ltd, should be taken into account.

[8] It is likely that Ms Coutinho, had she not been dismissed, would have continued in her employment until Colorado Group Ltd went into liquidation.

[9] There are no relevant contingent events.

[10] Ms Coutinho was paid 4 weeks in lieu of notice on 14 March, 2011.

[11] 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.

[12] Ms Coutinho’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 Ms Coutinho’s application and issue an order. Despite this, it is my view that Ms Coutinho’s application should not be dismissed but should be adjourned indefinitely. Should Ms Coutinho at some time obtain the permission of a Court to proceed, this application can be relisted and an order issued.

COMMISSIONER

Appearances:

Applicant: unrepresented

Respondent: no appearance

Hearing details:

14 July

BRISBANE

2011

 1   Exhibit 1, Statement of Davina Coutinho

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