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 2 January 2025, Ms Ngoc Huynh 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 Phillippa's Unit Trust as the Respondent. With her application, Ms Huynh filed a letter she had received from DyeCo Solvency & Turnaround, dated 20 December 2024, advising her that on 18 December 2024, Shane Leslie Deane and Nicholas Giasoumi of DyeCo were appointed as liquidators of the Respondent.

• [2] Ahead of a conciliation conference listed for 4 February 2025, the Commission received a Form 505 - Notice of appointment of a liquidator and a Form F3 - Employer Response, in which DyeCo raised the jurisdictional objection that Ms Huynh's application before the Commission could not proceed unless Ms Huynh obtained leave of the Court. As a result, the conciliation conference did not proceed, and instead Mr Huynh and her husband were provided with information about the Fair Entitlements Guarantee Scheme by the conciliator.

• [3] On 7 February 2025, Ms Abraham was sent a letter from the Commission which referred her 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 Huynh was advised that her application could not proceed unless she obtained leave of the Court and was asked to confirm by Friday, 14 February 2025, whether she intended to seek leave of the Court.

• [4] As no response was received from Ms Huynh by 14 February 2025, further correspondence was sent to Ms Huynh on 21 February 2025, directing her to advise by 28 February 2025 whether she had sought, or would be seeking, leave of the Court. Ms Huynh was advised that if no response was received, her unfair dismissal application may be dismissed without further notice.

• [5] Ms Huynh did not reply to this correspondence. On 12 and again on 14 March 2025, my chambers telephoned Ms Huynh. The calls were not answered, and voicemail messages were left asking her to contact the Commission urgently and warning Ms Huynh that her application was at risk of being dismissed. To date, Ms Huynh has not made further contact with the Commission.

• [6] 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 Huynh's application cannot proceed any further with the Commission except by leave of the Court.

• [7] 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 Huynh 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 her conversation with the conciliator on 4 February 2025. Accordingly, I dismiss Ms Huynh's application pursuant to s.587(1)(c) of the Act. An order[3] to this effect will be issued with this decision.

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

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

[3] PR785315.

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