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 7 March 2024, Mr Thomas Erdos applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Smart Health Australia as the Respondent.

• [2] On 12 March 2024, Ms Mak wrote to the Commission on behalf of the Respondent, notifying the Commission that the Respondent had been placed into liquidation on 8 March 2024. A Notice of Appointment as Liquidator published on the ASIC Notices Databases, confirmed this.

• [3] On 10 May 2024, Mr Erdos 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 Erdos was advised that his application could not proceed unless he obtained leave of the Court and was asked to confirm by Friday, 24 May 2024, whether he intended to seek leave of the Court. No response was received from Mr Erdos.

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

• [5] Further correspondence to Mr Erdos sent on 13 March 2025 directed him to advise by Thursday, 20 March 2025 whether he had, or will be, seeking leave of the Court. Mr Erdos was advised that if no response was received, his unfair dismissal application may be dismissed without further notice.

• [6] No response was received by 20 March 2025 and on 8 April 2025 my Chambers attempted to call Mr Erdos. The Applicant answered the call and advised he was unable to take the call. Further correspondence to Mr Erdos sent on 6 June 2025, directed him to advise by 13 June 2025 whether he had, or will be, seeking leave of the Court. Mr Erdos was advised that if no response was received, his unfair dismissal application may be dismissed without further notice.

• [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 Erdos' 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 Erdos 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 not responded to the Commission's correspondence. Accordingly, I dismiss Mr Erdos' 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 Erdos on 7 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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