The Trustee for the Luke and Nicole Zappelli Family Trust T/A Cool Breeze Clothing Pty Ltd Trading as Dimmeys

[2020] FWC 2346

[2020] FWC 2346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

The Trustee for the Luke and Nicole Zappelli Family Trust T/A Cool Breeze Clothing Pty Ltd Trading as Dimmeys
(C2020/1581, C2020/1587, C2020/1589, C2020/1595, C2020/1598, C2020/1599, C2020/1601)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 5 MAY 2020

Redundancy – application to vary NES entitlement – opportunity to provide further materials – applications dismissed.

[1] On 16 March 2020, the Trustee for the Luke and Nicole Zappelli Family Trust T/A Cool Breeze Clothing Pty Ltd trading as Dimmeys (“Applicant”) lodged seven applications seeking relief from its statutory obligation to make redundancy payments pursuant to s.120 of the Fair Work Act 2009 (Cth) (the Act).

[2] The employee respondents named in each application are Sue-Ellen Munyard (C2020/1581), Rachel Bethune (C2020/1587), Bobbi-Jean Geale (C2020/1589), Denise Larsen (C2020/1595), Kristen Cowland (C2020/1598), Jaime Hansen (C2020/1599), and Maureen Richardson (C2020/1601).

[3] The seven applications were listed jointly for a Conference on 30 March 2020. At the conference the respondents indicated their general opposition to the applications. 1 At the conclusion of the Conference, Directions were issued in preparation for a further Conference scheduled for 11 May 2020.

[4] The Directions required the Applicant to lodge with the Commission and serve on each respondent in each respective application, submissions and witness statements which would justify a variation of an entitlement to redundancy pay under s.120 of the Act by close of business on Monday, 27 April 2020. The Directions also stated that the applications would be dismissed if the applicant did not comply with the Directions.

[5] The Applicant did not submit any materials in support of their applications and as directed. My Chambers contacted the Applicant on 28 April 2020 seeking an explanation. The Applicant advised:

“The Company has gone to Liquidation so email has been forwarded to the below liquidator.” 2

[6] On 29 April 2020, my Chambers wrote to the Applicant stating that if submissions or an application for an extension of time, with persuasive grounds, were not provided by close of businesses of the same day, the matter may be dismissed without further notice. In response, the appointed liquidator sent an email requesting copies of each application lodged with the Commission and any other relevant materials. My Chambers sent the documentation as requested stating that requests for an extension of time with which to provide submissions and witness statements, or an indication that the applications are to be withdrawn, was to be provided by no later than close of business Friday, 1 May 2020.

[7] On 1 May 2020, the liquidator replied with the following:

“I refer to your email below.

After review of the documentation provided, the Liquidators do not intend to provide witness statements or submissions.

They do not consent nor oppose withdrawing the application to amend redundancies.” 3

Conclusion

[8] There is no sufficient evidence before the Commission to support a grant of relief from the Applicant’s statutory obligations to make redundancy payments pursuant to s.120 of the Act. The applications were contested by the respondents. The opportunity to provide further submissions and evidence was provided to the Applicant in the Directions, and no such material has been provided. Further, the liquidator stated on 1 May 2020 that no submissions or witness statements will be provided.

[9] On the material before me I am not satisfied that the applications should be granted. There is no basis to consider reducing the redundancy payments provided for in s.119 of the Act. The applications are therefore dismissed. An Order to this effect is contained in PR718852.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718851>

 1   Conference, 30 March 2020.

 2   Email from Applicant dated 28 April 2020 at 03:42 pm.

 3   Email from Liquidator dated 1 May 2020 at 8:35 am.