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 13 March 2024, Ms Kasey Harries applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Precision Phone Pty Ltd as the Respondent.

• [2] A conciliation conference was listed for 9 April 2024 but did not go ahead, as the Respondent advised that it would not attend.

• [3] On 27 March 2024, Andrew Juzva, the appointed Liquidator of the Respondent wrote to the Commission advising that on 8 March 2024 the Respondent was placed into liquidation and that the Respondent would not be submitting any material in respect of Ms. Harries' claim.

• [4] On 10 May 2024, Ms Harries 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 Harries 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.

• [5] On 18 June 2024 Ms Harries 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 the Applicant 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 Harries. The call was not answered, and a voice mail was left requesting that she 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 Harries' 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. The Applicant has made no contact with the Commission since lodging their Form F2 Application on 13 March 2024. Accordingly, I dismiss Ms Kasey Harries' 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 Kasey Harries on 13 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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