Vicky Woo v Ferrier Hodgson

[2015] FWC 2282

[2015] FWC 2282 [Note: An appeal pursuant to s.604 (C2015/3703) was lodged against this decision - refer to Full Bench decision dated 25 June 2015 [[2015] FWCFB 3993] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vicky Woo
v
Ferrier Hodgson
(U2014/14487)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Vicky Woo alleged that the termination of her employment by Ferrier Hodgson was unfair.

[2] Ferrier Hodgson objected to Ms Woo’s application on the basis that it was not Ms Woo’s employer and that her employer was Greater Vision Enterprises Pty Ltd.

[3] Mr George Georges and Mr Brendan Richards of Ferrier Hodgson were appointed receivers and managers of Greater Vision on 6 August 2014. They lodged a form F3 in the name of Greater Vision Enterprises (Receivers and Managers Appointed) (Administrators Appointed) in which they objected to Ms Woo’s application on the basis that the dismissal was a case of genuine redundancy.

[4] In a letter provided to employees on 7 August 2014, Mr Georges advised that Greater Vision would continue to trade and the receivers assumed responsibility for the management of the company and control of its assets.

[5] The application was referred to conciliation but it was not resolved.

[6] On 25 November 2014, Ms Woo applied to have the name of the respondent to her unfair dismissal application changed to Greater Vision. Ferrier Hodgson consented to this change but advised that the creditors of Greater Vision had resolved on 11 November 2014 to place the company into liquidation.

[7] On 19 January 2015, Ms Woo filed submissions in support of her unfair dismissal application.

[8] On 20 January 2015, Ms Woo was sent a letter advising her that Greater Vision had been placed in liquidation and she would need leave of the court to proceed. Unfortunately Ms Woo was only given until 20 January 2015 to respond to this correspondence.

[9] An order was made on 21 January 2015 changing the name of the respondent from Ferrier Hodgson to Greater Vision.

[10] On 11 February 2015, Ms Woo was again sent a letter advising her that Greater Vision had been placed in liquidation she would need leave of the court to proceed. 1 Ms Woo then sought to have her claim that she was in fact employed by Ferrier Hodgson heard and determined.

[11] On 19 February 2015, Ms Woo sent a complaint to the Commission about the conciliation process was well as the letter dated 20 January 2015. In that letter she argued that her employment with Greater Vision ended when the liquidators were appointed and that after that date a new employment relationship began. She submitted that from that date Ferrier Hodgson became her employer.

[12] She submitted that all her employment obligations and responsibilities had passed to Ferrier Hodgson. She said that the Tax Office had advised that her employer had changed to Ferrier Hodgson and the Workers Compensation policy had been amended to the new owner Ferrier Hodgson and new entitlements and superannuation were accrued under the new employer’s name Ferrier Hodgson. She submitted that Ferrier Hodgson had made superannuation contributions on her behalf. In that submission, she asked the Commission to reconsider the order naming Greater Vision as the respondent.

[13] On 3 March 2015, I caused an email to be sent to the parties. In that email I noted the Ms Woo’s application to have the name of the respondent varied was made after the appointment of liquidators and under section 500(2) of the Corporations Act 2001 no civil proceeding could be commenced. I advised the parties that I was proposing, on my own motion, to set aside the order dated 21 January 2015 that changed the name of the respondent from Ferrier Hodgson to Greater Vision Enterprises Pty Ltd.

[14] In the same email, I also advised that I had formed the preliminary view that Ms Woo’s claim against Ferrier Hodgson had no reasonable prospects of success and the parties were directed to file submissions and evidence to support their respective positions.

[15] Ferrier Hodgson provided material on 4 March 2015 and a copy was provided to Ms Woo. On 9 March 2015 Ms Woo sought an extension of time to file material and she was given until 13 March 2015 to file her material. On 15 March 2015, Ms Woo advised that she was still awaiting material from the Victorian WorkCover Authority and the Australia Taxation Office. She asked the hearing proceed as scheduled. On 16 March 2015 the parties were advised that the matter would be heard on 23 March 2015. On the same day, I set aside the order made on 21 January 2015. 2

[16] On 18 March 2015, Ferrier Hodgson forwarded a copy of an email sent to Ms Woo outlining their reason why it submitted it was not her employer. On 19 March 2015, Ms Woo sought an adjournment to permit settlement discussions to occur. I acceded this request however on the same day Ferrier Hodgson advised that there had been no recent discussions between the parties and if the matter could not be resolved, they had no objection to the matter proceeding as scheduled as they were in the process of finalising the receivership and retiring as receivers. Consequently at 9am on 20 March 2015 the parties were advised that the hearing would proceed on 23 March 2015.

[17] Ms Woo did not attend the hearing. Ms Kristy Goulden and Ms Luci Palaghia appeared on behalf of Ferrier Hodgson.

[18] On 23 March 2015, Ms Woo sent an email to the Commission in which she advised that she had not received the notice relisting the matter until that morning. She said she had been at a three day intensive training course. As a result, Ms Woo was provided with an opportunity to file any submissions and evidence to support her claim that Ferrier Hodgson was her employer. She was advised that at the hearing Ferrier Hodgson relied upon its written submissions and further advised that the Receivers and Managers appointed were Mr Georges and Mr Richards. Ms Woo did not file any further material on this issue.

[19] I am satisfied that Ms Woo was not employed by Ferrier Hodgson. In this matter the Receivers and Managers, who were appointed were Mr Richards and Mr Georges so even if they became Ms Woo’s employer, they are not Ferrier Hodgson.

[20] Further, the Corporations Act 2001 makes it clear that when a receiver acts as an agent for the corporation they do not become the company. The contract of employment of any employee is not transferred to the receiver. That the receiver pays the wages, tax and takes out insurance is not evidence of an employment relationship between the receivers and the company’s employees.

[21] The appointment of receivers and managers does not terminate employment. In this case the circular to employees provided the following advice:

“The Receivers decided to continue trading the Company’s business for the time being. Your employment with the Company continues on the same terms and conditions that existed at the time of my appointment.

In this regard, wages will continue to be paid however rates and employment conditions will be subject to review to ensure they comply with all aspects of the relevant laws.

Please note that the Receivers are not in a position to adopt any pre-existing contracts that you may have had with the Company.”

[22] I therefore conclude that Ferrier Hodgson were not Ms Woo’s employer and therefore her application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance by the Applicant.

K. Goulden for the Respondent.

Hearing details:

2015.

Melbourne:

23 March.

<Price code A, PR562698>

 1   An earlier letter had been sent on 20 January 2015 which had only given Ms Woo until 20 January 2015 to respond.

 2   PR562031.

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