Patel v The Tea Centre Pty Ltd

[2018] FWC 7814

[2018] FWC 7814

FAIR WORK COMMISSION

DECISION

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

Mrs Krupali Patel
v
The Tea Centre Pty Limited T/A The Tea Centre
(U2018/9331)

DEPUTY PRESIDENT BULL SYDNEY, 21 DECEMBER 2018

Application for an unfair dismissal remedy. Failure to prosecute application, matter dismissed.

[1] On 10 September 2018, Mrs Krupali Patel (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) alleging that she had been unfairly dismissed by The Tea Centre Pty Limited T/A The Tea Centre (the respondent).

[2] The applicant also provided to the Commission a letter (the letter) dated 30 August 2018 addressed to her from a Mr Henry McKenna of Hayes Advisory. Mr McKenna referred in the letter to his appointment as Receiver & Manager of the respondent’s company on 24 August 2018 and advised the applicant that the purchaser of the respondent’s company had decided not to extend an offer of employment to the applicant.

[3] Mr McKenna confirmed that the letter was a confirmation notice of the termination of the applicant’s employment with the respondent’s company, effective 29 August 2018.

[4] On 26 September 2018, the respondent’s Receiver & Manager, Mr McKenna, lodged a Form F3 – Employer Response to Unfair Dismissal Application. In the response, the respondent raised a jurisdictional objection to the applicant’s application on the following grounds:

“At the time of termination, the Company (The Tea Centre Pty Ltd) was subject to Voluntary Administration and Receivership. The Receiver & Manager sold the Company and the purchaser elected not to offer employment to all employees, including Ms Patel. Accordingly, as the Company was no longer trading, Ms Patel’s position was redundant and she was terminated by the Receiver & Manager.

Ms Patel is entitled to make a claim under the Fair Entitlement Guarantee regime of any unpaid entitlements (excluding superannuation).”

Background

[5] The matter was initially listed for telephone conciliation on 8 October 2018, before a Fair Work Commission (Commission) conciliator. However, that conciliation was cancelled on 27 September 2018 following correspondence on the same date to the Commission from Mr Adam Duggan, Manager of Bentleys Corporate Recovery Pty Ltd, the respondent’s liquidator. Mr Duggan informed the Commission that the respondent’s liquidator declined to participate in the conciliation. Mr Duggan was informed by the Commission that the matter would proceed to hearing.

[6] Accordingly, the matter was set down for a Telephone Mention on 10 October 2018, and a jurisdictional hearing on 3 December 2018 at 10:00am, before me.

[7] The respondent was directed to file and serve an outline of submissions, witness statements and other materials in support of their jurisdictional objection to the applicant’s application by 25 October 2018.

[8] The applicant was directed to file and serve any materials in opposition to the respondent’s jurisdictional objection by 15 November 2018, with the respondent provided a further opportunity to reply by 22 November 2018.

[9] During the Telephone Mention on 10 October 2018, the respondent submitted that the Commission did not have jurisdiction to hear the matter, referring to s.500(2) of the Corporations Act 2001, which provides:

(2) After passing of the resolution of the 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.

[10] The applicant asserted in the Telephone Mention that she would seek legal advice in relation to the issues raised by the respondent.

[11] Following the Telephone Mention, the respondent’s liquidator, Mr Duggan, provided to the Commission and the applicant two documents entitled ‘Appointment of Administrators Document’ and ‘Report to creditors dated 13 September 2018’.

[12] A copy of minutes for the meeting of creditors on 13 September 2018 was also provided, indicating that the voluntary winding up of the respondent’s company was passed unanimously by the creditors.

[13] At the scheduled hearing on 3 December 2018, there were no appearances by, or on behalf of, the applicant or the respondent.

[14] On the same day, my Associate sent to the parties an email noting that the parties had not appeared at the scheduled hearing. The email also noted that no submissions had been filed in accordance with the Directions issued on 4 October 2018, which was understood to be on the basis that the applicant’s employer had gone into voluntary administration.

[15] In the email correspondence to the parties, my Associate advised the applicant that if she did not provide a response by close of business on 5 December 2018, it would be understood that she no longer wished to continue her application.

[16] To date the applicant has not responded to the correspondence and has not filed any submissions, witness statements or further material in accordance with the Directions issued in the Notice of Listing on 4 October 2018. It is presumed that the applicant has accepted the jurisdictional hurdles imposed by the Corporations Act 2001when making an unfair dismissal claim against an employer that has gone into gone into voluntary administration on the initiative of the employer’s creditors.

Dismissing applications

[17] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[18] The applicant’s application as it currently stands is made against an entity which has been placed into voluntary liquidation.

[19] The applicant has not contacted the Commission to provide any explanation regarding her failure to comply with the directions.

[20] In Peter Viavattene v Health Care Australia 1 the Full Bench stated at [39]:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

[21] In the Full Bench decision of L. Sayer v Melsteel Pty Ltd 2 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[22] Based on the circumstances outlined above, I am satisfied that the applicant has failed to prosecute her application. In accordance with s.587 of the FW Act, the application is dismissed for want of prosecution and on the basis it has no reasonable prospects of success.

DEPUTY PRESIDENT

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 1  [2013] FWCFB 2532

 2   [2011] FWAFB 7498 at [19]