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 24 December 2023 Mr Tony Taouk applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Civil Labour Hire Pty Ltd as the Respondent.

• [2] On 18 January 2024 the Commission received an email from Mr Laba of Raft Consulting advising that the Respondent had entered voluntary liquidation on 19 December 2023 and attaching the ASIC Form 505. On 18 January 2024, the Liquidator informed the Commission that there had been a resolution of creditors to voluntarily wind up the company.

• [3] The matter was allocated to Deputy President Clancy and on 14 February 2024 his Chambers emailed Mr Taouk, advising him of these developments. Mr Taouk 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." The Applicant 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.

• [4] On 15 February 2024, Mr Taouk emailed Deputy President Clancy's chambers advising that he intended to apply for leave of the Court.

• [5] On 22 February 2024, Deputy President Clancy issued a decision staying the matter, notifying Mr Taouk that "No further action will be taken with respect to the matter until such time as the Commission is notified that leave of the Court has successfully been obtained."

• [6] On 24 February 2025, my Chambers sent correspondence to Mr Taouk requesting that he provide an update on whether he had, or intended to seek, leave of the Court and advising that, if no response was received by 4 March 2025, his application may be dismissed.

• [7] No response was received by 4 March and on 11 March 2025, my Chambers called Mr Taouk. Mr Taouk advised that he still intended to seek leave of the Court and would like the matter to remain open.

• [8] On 6 June 2025, my Chambers emailed Mr Taouk requesting that he provide an update to the Commission by 13 June 2025 on whether he had sought, or would be seeking, leave of the Court. Mr Taouk was advised that if he failed to do so, his application may be dismissed without further notice. No response was provided by Mr Taouk.

• [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 Taouk'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. 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. Accordingly, I dismiss Mr Taouk'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 Tony Taouk on 24 December 2023 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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