s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - respondent placed into creditors' voluntary liquidation - application stayed.

• [1] On 19 June 2023, Mr Clinton Wallis made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Defence Electrical Pty Ltd (the Respondent) and that his dismissal was harsh, unjust and unreasonable.

• [2] On 7 July 2023, the Respondent filed a Form F3 Employer Response in which the Respondent objected to the application on the jurisdictional grounds that the dismissal was a case of genuine redundancy.

• [3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 6 September 2023. Mr Wallis appeared and represented himself. The Respondent was represented by Mr Scott Cliffe, General Manager and Co-Owner and Ms Meryssa Lalotoa, Office Manager of the Respondent. At the conclusion of the hearing, I reserved my decision.

• [4] On 14 November 2023, Mr Wallis contacted my chambers after receiving notification that the Respondent has gone into receivership. I contacted the Respondent to enquire about the status or solvency of the corporation. On 16 November 2023, the Respondent sent an email to Chambers only, attaching a notification of resolution - voluntary winding up. The document indicated that Mr Stephen Earel of Cor Cordis was appointed as a "Liquidator of creditors' voluntary liquidation" on 14 November 2023. Mr Wallis also sent an email to Chambers on 20 November 2023 providing a copy of correspondence which was sent to him advising the appointment of liquidator.

• [5] I informed the parties that in light of the appointment of a liquidator, it would be necessary to stay the application on account of the Commission being unable to further determine the application without leave of the court. I advised Mr Wallis that if he wishes to withdraw his application, if he does not intend on seeking leave of the Court, that is open for him to do so.

• [6] Section 500(2) of the Corporations Act 2001 (the Corporations Act) provides:

"(2) After the passing of the resolution for 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."

• [7] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of 'court' and 'Court':

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(c) the Federal Circuit and Family Court of Australia (Devision 1);

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts."

• [8] In Smith & Ors v Trollop Silverwood & Beck Pty Ltd,[1] the Full Bench held that the Commission is not a "Court" and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations At.

• [9] Further, in Silalahi v CMI Industrial (Forge),[2] the then Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the Act falls within the meaning of "civil proceedings" in s.500(2) of the Corporations Act.

• [10] Having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.

• [11] Accordingly, the Applicant's application is stayed until leave of the Court is granted.

[1] (2003) 142 IR 137.

[2] [2012] FWA 7275 at [11] - [16].

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