Fair Work Act 2009

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 23 July 2024, Mr Jianrong Chen applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Yiyun Corporation Pty Ltd as the Respondent.

• [2] On 4 September 2024, Mr Corry of Smith Hancock wrote the Commission on behalf of the Respondent, notifying the Commission that the Respondent had been placed into liquidation on 29 July 2024.

• [3] On 6 September 2024, Mr Chen 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 Chen was advised that his application could not proceed unless he obtained leave of the Court and was asked to confirm by Friday, 13 September 2024, whether he intended to seek leave of the Court. No response was received from Mr Chen.

• [4] On 18 October 2024 Mr Chen 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 18 October 2024, Deputy President Clancy stayed the matter.

• [5] Further correspondence to Mr Chen sent on 12 March 2025 directed him to advise by Wednesday, 19 March 2025 whether he had, or will be, seeking leave of the Court. Mr Chen 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 2025, and on 8 April 2025 my Chambers attempted to call Mr Chen. The call was not answered and there was no facility to leave a voicemail message.

• [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 Chen'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 Chen 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 his phone call on 30 October 2024. Accordingly, I dismiss Mr Chen'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 Jianrong Chen on 23 July 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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