s.394 - Unfair dismissal

Application for an unfair dismissal remedy - voluntary liquidation - dismissal under s.587(1)(c) at the Commission's initiative - application has no reasonable prospects of success.

• [1] On 15 March 2024, Mr Daniel Wilson applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Gas and Plumbing Australia Pty Ltd as the Respondent.

• [2] On 24 April 2024, Ms Vella of BCR Advisory wrote the Commission on behalf of the Respondent, notifying the Commission that the Respondent had been placed into liquidation on 10 April 2024.

• [3] On 17 May 2024, Mr Wilson was advised in correspondence from the Commission of these developments. He was referred to s.500(2) of the Corporations Act 2001 which provides that "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." Mr Wilson was advised that his application could not proceed unless he obtained leave of the Court and was asked to confirm by Friday, 31 May 2024, whether he intended to seek leave of the Court. No response was received from Mr Wilson.

• [4] On 17 September 2024 Mr Wilson was again advised in correspondence that he would need to make an application to the appropriate court to seek leave, and that the matter cannot proceed except by leave of the Court. The correspondence advised him that "no action can or will be taken by the Commission in relation to your unfair dismissal application unless you obtain leave of the court." On 17 September 2024, Deputy President Clancy stayed the matter.

• [5] Further correspondence to Mr Wilson sent on 12 March 2025 directed him to advise by 19 March 2025 whether he had, or will be, seeking leave of the Court. Mr Wilson was advised that if no response was received, his unfair dismissal application may be dismissed without further notice.

• [6] No response was received by 19 March and on 8 April 2025 my Chambers attempted to call Mr Wilson. The call was not answered, but a voicemail message was left, notifying Mr Wilson that an email had been sent to him and that he should urgently contact the Commission, as his application was at risk of being dismissed. No response to this correspondence or phone call was received by the Commission.

• [7] It is well-established that the Commission is not a Court and is therefore unable to grant the leave required under s.500(2) of the Corporations Act.[1] I am also satisfied 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.[2] I am satisfied that Mr Wilson's application cannot proceed any further with the Commission except by leave of the Court.

• [8] I consider it appropriate to dismiss the application pursuant to s.587(1)(c) of the Act. I do so on the basis that I consider the application has no reasonable prospects of success. Mr Wilson has been on notice for an extended period of a significant obstacle that prevents him from continuing his case - the need to obtain leave of a Court under s.500(2) of the Corporations Act. He has made no contact with the Commission since lodging his Form F2 Application on 15 March 2024. Accordingly, I dismiss Mr Wilson's application pursuant to s.587(1)(c) of the Act. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Daniel Wilson on 15 March 2024, is dismissed.

[1] Smith v Trollope Silverwood & Beck Pty Ltd (2003) 142 IR 137.

[2] Silalahi v CMI Industrial (Forge) [2012] FWA 7275 at [11]- [16].

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