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 6 January 2025, Mr Quddus Aijaz Mohammad Abdul applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Phillippas Pty Ltd as the Respondent.

• [2] In Mr Abdul's Form F2 Application, he noted that the Respondent had entered into liquidation.

• [3] A conciliation conference was listed by the Commission for 11:15AM on Wednesday, 12 February 2025. The Commission emailed the liquidator to confirm whether it consented to participating in the conciliation conference. No response to this correspondence was received by the Commission and the conciliation conference on 12 February 2025 was cancelled.

• [4] On 14 February 2025, Mr Abdul was advised in correspondence from the Commission that the Respondent had been wound up and that Nicholas Giasoumi and Shane Leslie Deane had been appointed liquidators. Mr Abdul 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 Abdul was advised that his application could not proceed unless he obtained leave of the Court and was asked to confirm by Thursday, 20 February 2025, whether he intended to seek leave of the Court.

• [5] No response was received by the Commission from Mr Abdul and on 21 February 2025, Mr Abdul was again advised in correspondence to notify the Commission of whether he intended to seek leave of the Court by 28 February 2025.

• [6] On 25 February 2025, Mr Abdul responded to this correspondence confirming that he wished to seek leave of the Court.

• [7] On 6 June 2025, further correspondence was sent to Mr Abdul noting the following:

"On 14 February 2025, you were requested to confirm whether you intend to seek leave of the Court.

On 25 February 2025, you emailed Chambers stating that you confirm to seek leave of the Court.

Mr Abdul, if you do not contact these Chambers confirming that you have sought leave of the Court in relation to your application, by no later than 12pm on Friday, 13 June 2025, your application (U2025/184) will be at risk of being dismissed without further notice, via a decision published on the Commission's public website."

• [8] No response to this correspondence was received by the Commission.

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

• [10] 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 Abdul 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. Mr Abdul has made no contact with the Commission since his email of 25 February 2025. Accordingly, I dismiss Mr Abdul'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 Quddus Aijaz Mohammad Abdul on 6 January 2025, 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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