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 7 December 2023, Ms Jackie Drew applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming The Trustee for Gammon Family Trust as the Respondent.

• [2] A conciliation conference was listed for 12 January 2024. The Respondent attended the conference, but the conciliation conference could not progress as Ms Drew did not attend. During the conciliation conference the Respondent informed the Commission that it had entered liquidation. A second conciliation conference was listed for 7 March 2024, which was also not attended by Ms Drew.

• [3] On 5 April 2024 the Commission emailed the Respondent, noting that it was now in liquidation and requesting confirmation of which sections of the Corporations Act 2001 (Cth) were relied upon to initiate the liquidation as well as requesting a copy of any Form 505 that may have been lodged with ASIC. Mr Adam Johnston, Liquidator of the Respondent replied later that day, providing the Form 505 and noting that the Respondent had entered a creditors' voluntary liquidation, initiated under section 491(1) of the Corporations Act 2001 (Cth).

• [4] On 10 May 2024, Ms Drew was advised in correspondence from the Commission of these developments. She 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." Ms Drew was advised that her application could not proceed unless she obtained leave of the Court and was asked to confirm by Friday, 24 May 2024, whether she intended to seek leave of the Court. No response was received from Ms Drew.

• [5] On 18 June 2024 Ms Drew was again advised in correspondence that she 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 her 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 18 June 2024, Deputy President Clancy stayed the matter.

• [6] On 13 March 2025, my Chambers sent correspondence to Ms Drew requesting that she provide an update on whether she had, or intended to seek, leave of the Court and advising that, if no response was received by 20 March 2025, her application may be dismissed.

• [7] No response was received by 20 March, and on 8 April 2025, my Chambers attempted to call Ms Drew. The call was not answered and a voicemail message was left requesting that Ms Drew contact the Commission urgently, as her application was at risk of being dismissed.

• [8] 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 Ms Drew's application cannot proceed any further with the Commission except by leave of the Court.

• [9] 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. The Applicant has been on notice for an extended period of a significant obstacle that prevents them from continuing their case - the need to obtain leave of a Court under s.500(2) of the Corporations Act. Ms Drew has made no contact with the Commission since lodging her Form F2 Application on 13 March 2024. Accordingly, I dismiss Ms Drew'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 Ms Jackie Drew on 7 December 2023, 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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