Paula Jane Allen v Kandeena Pty Ltd as Trustee for the Rasmussen Family Trust

[2020] FWC 915

[2020] FWC 915

FAIR WORK COMMISSION

DECISION

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

Paula Jane Allen
v
Kandeena Pty Ltd as Trustee for THE RASMUSSEN FAMILY TRUST
(U2019/5176)

COMMISSIONER HUNT BRISBANE, 24 FEBRUARY 2020

Application for an unfair dismissal remedy – remedy to be awarded – compensation less deduction for misconduct

[1] This decision concerns the remedy to be awarded in the above matter. In my decision of 12 February 2020 [2020] FWC 761, I determined that the Respondent is to pay to Ms Allen compensation less applicable tax in the amount of 15.5 weeks less a deduction of 30% for misconduct, together with superannuation.

[2] As a casual worker, Ms Allen’s wage varied from week to week. As such, I directed the Respondent to provide information concerning the relevant weekly amount paid to Ms Allen during March and April 2019 to allow the correct calculation to be made.

[3] On 17 February 2020, the Respondent filed with my Chambers payslips for the period 4 March 2019 to 28 April 2019 comprising four payslips. It is clear from the payslips that wages were paid to Ms Allen on a fortnightly basis.

[4] Ms Allen earned the following gross amounts across the eight week period:

19 March 2019: $1,484.64

1 April 2019: $1,915.36

16 April 2019: $1,740.42

30 April 2019: $1,183.80

Total: $6,324.22

[5] The weekly average earnings of Ms Allen over the week period is $790.5275.

[6] The amount of compensation to be paid is 15.5 weeks x $790.5275 = $12,253.1762, less a deduction of 30% = $8,577.22. Pursuant to my earlier decision, this amount is to be taxed, and superannuation of 9.5%, being an amount of $814.84 is to be paid into Ms Allen’s superannuation account.

[7] Relevant to the amount ordered to be paid by instalments, in my earlier decision I invited submissions from the parties. On 17 February 2020 the Respondent emailed my Chambers advising that Kandeena Pty Ltd no longer trades, has received no further income, and has a current account balance of $738.96. The Respondent requested that the compensation be paid in instalments.  The Respondent did not provide any supporting material such as profit and loss statements or account balance statements.

[8] Ms Allen sent correspondence to my Chambers on 19 February 2020, objecting to payments being made in instalments on the basis the Respondent had not given evidence of amounts transferred from this account prior to obtaining this balance, nor has evidence of Rasmussen's Family Trust account which Ms Allen stated was also listed as “co-respondents” been provided. Ms Allen submitted that the Respondent had delayed proceedings throughout the course of the matter and that this was another attempt to stall proceedings further. I observe the Form F2 lodged on 7 May 2019 named only Kandeena Pty Ltd as the Respondent, yet the Form F3 nominated the Respondent as Kandeena Pty Ltd as Trustee for THE RASMUSSEN FAMILY TRUST. On 24 February 2020 the Respondent’s name was amended with the consent of the parties.

[9] On 19 February 2020 the Respondent sent further correspondence in reply, requesting compensation be paid in instalments equal to the average weekly wage as will be determined by the Commission. Mr Karl Rasmussen, on behalf of the Respondent submitted that instalments be paid fortnightly as this represents payments that Ms Allen received while employed. Further, it was submitted that after leaving Puma there was still the ‘wash up’ and bank loans to be repaid together with BAS, superannuation and tax on wages. Mr Rasmussen submitted that he had gone into debt opening a new business and expressed concern that paying a lump sum will push him into hardship.

[10] The Respondent is the entity against whom the order of the Commission will be made. It is not an order against Mr Rasmussen, although it is noted that the Respondent is incorporated as trustee for THE RASMUSSEN FAMILY TRUST. The Commission is minded to ensure that Ms Allen is paid the sum of $8,577.22 gross, plus $814.84 in superannuation without further risk of the Respondent being liquidated and Ms Allen becoming a creditor.

[11] I do not consider it appropriate for the compensation ordered to be paid in fortnightly payments at the average weekly rate. To do so would necessarily mean that the payment would be made over eight weeks in four fortnightly payments. There is no evidence before the Commission that would persuade me to exercise my discretion to make such an order.

[12] In all of the circumstances I consider it appropriate for the order of compensation to be made as follows:

○ $4,288.61gross, subject to taxation by no later than: 9 March 2020
○ $4,288.61gross, subject to taxation by no later than: 23 March 2020
○ $814.84 superannuation by no later than: 31 March 2020

[13] An Order [PR716894] to that effect will be issued with this decision.

COMMISSIONER

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