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

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.

In this case, the Trustee for the Luke and Nicole Zappelli Family Trust, trading as Cool Breeze Clothing Pty Ltd and under the trading name Dimmeys, applied to the Fair Work Commission to vary the National Employment Standards (NES) entitlement of the employees who were made redundant. The dispute centred on the application's adherence to procedural fairness and the opportunity provided for the respondents to present further materials. The Fair Work Commission was tasked with determining whether the application met the necessary standards and if the respondents were given an adequate chance to respond.

The legal issues that the Commission had to resolve included whether the application was procedurally fair and whether the respondents had an opportunity to provide further materials. The Commission considered the statutory framework under the Fair Work Act 2009 and previous case law that dealt with similar procedural fairness issues in redundancy applications. The central focus was on whether the Commission's procedural fairness obligations were met in light of the statutory and common law requirements.

The Fair Work Commission dismissed the application, concluding that it did not comply with the principles of procedural fairness. The Commission found that the respondents were not provided with a sufficient opportunity to respond to the application, which is a fundamental requirement under the Fair Work Act. The Commission held that the application process did not allow the respondents to adequately present their views and evidence, thereby breaching procedural fairness. As a result, the Commission dismissed both the application to vary NES entitlement and the subsequent application for leave to re-lodge the application.

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

DECISION

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established