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 16 February 2024, Ms Vineetha Annie Abraham applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Davex Australia Pty Ltd as the Respondent.

• [2] Ahead of a conciliation conference listed for 19 March 2024, the Commission was advised that on 18 February 2024 David McGrath, Kelly-Anne Trenfield and Benjamin Campbell of FTI Consulting were appointed as voluntary administrators of the Respondent. FTI Consulting sought an adjournment of the conciliation conference until the outcome of the administration process was known. The ASIC notices database showed that a general meeting of creditors on 23 February 2023 resolved that the Respondent be wound up and David McGrath of FTI Consulting appointed as the liquidator.

• [3] On 29 February 2024, Ms Abraham 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 Abraham was advised that her application could not proceed unless she obtained leave of the Court and was asked to confirm by Thursday, 14 March 2024, whether she intended to seek leave of the Court. On 4 March and again on 8 March 2024, Ms Abraham wrote enquiring about the process to seek leave of the Court.

• [4] On 8 March 2024 Ms Abraham was again advised in correspondence that she would need to make an application to the appropriate court to seek leave, and that the Commission was not able to provide legal advice or make any application to a court on her behalf. The correspondence pointed her to information on the Commission's website about accessing free legal help but advised her 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."

• [5] On 21 March 2024, Deputy President Clancy issued a decision[1] staying the matter.

• [6] Further correspondence to Ms Abraham on 24 February 2025 directed her to advise by 4 March 2025 whether she had, or will be, seeking leave of the Court. Ms Abraham was advised that if no response was received, her unfair dismissal application may be dismissed without further notice.

• [7] Ms Abraham did not reply to this correspondence. On 12 and again on 14 March 2025, my chambers telephoned Ms Abraham. The calls were not answered, and voicemail messages were left asking her to contact the Commission urgently and warning Ms Abraham that her application was at risk of being dismissed. No response was received from Ms Abraham.

• [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.[2] 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.[3] I am satisfied that Ms Abraham'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 Abraham 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 email of 8 March 2024. Accordingly, I dismiss Ms Abraham's application pursuant to s.587(1)(c) of the Act. An order[4] to this effect will be issued with this decision.

[1] [2024] FWC 744.

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

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

[4] PR785305.

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