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 28 March 2024, Ms Marnie McCrindle applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Andrew Goldman Excavations Pty Ltd as the Respondent.

• [2] A conciliation conference was listed for 9:15AM on Friday, 26 April 2024. On 10 April 2024, the Commission was advised that on 15 March 2024, the Respondent was wound up as a creditors' voluntary winding up and that S J Michell was appointed liquidator. On 18 April 2024, the liquidator of the Respondent informed the Commission that they would not be participating in the conciliation conference listed for 26 April 2024.

• [3] On 22 May 2024, Ms McCrindle 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 McCrindle was advised that her application could not proceed unless she obtained leave of the Court and was asked to confirm by Wednesday, 5 June 2024, whether she intended to seek leave of the Court.

• [4] No response to this correspondence was received by the Commission from the Applicant and on 17 September 2024, Deputy President Clancy issued a decision staying the matter.

• [5] My Chambers sent further correspondence to Ms McCrindle on 13 March 2025 directing her to advise by 20 March 2025 whether she had, or will be, seeking leave of the Court. Ms McCrindle was advised that if no response was received, her unfair dismissal application may be dismissed without further notice.

• [6] On 8 April 2025, Ms McCrindle advised via telephone call that she had received the correspondence but was unsure how to proceed and would contact her lawyers for advice before notifying the Commission of her intentions.

• [7] On 6 June 2025, my Chambers sent further correspondence to Ms McCrindle requiring an update on whether she had sought or would be seeking leave of the Court. Such an update was to be provided to the Commission by no later than 12:00PM on Friday, 13 June 2025 and Ms McCrindle was notified that if she did not contact my Chambers confirming that she had sought leave of the Court in relation to her application, her application would be at risk of being dismissed. No response to this correspondence was received by the Commission.

• [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 McCrindle'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. Ms McCrindle has been on notice for an extended period of a significant obstacle that prevents her from continuing her case - the need to obtain leave of a Court under s.500(2) of the Corporations Act. She has made no contact with the Commission since the phone call on 8 April 2025. Accordingly, I dismiss Ms McCrindle'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 Marnie McCrindle on 28 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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