s.394 - Unfair dismissal

Application for an unfair dismissal remedy - voluntary liquidation - application stayed.

• [1] On 16 February 2024, Ms Vineetha Annie Abraham made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Abraham's application was Davex Australia Pty Ltd T/A Davis Lighting (the Respondent).

• [2] A conciliation conference before a staff conciliator of the Commission was listed for Tuesday, 19 March 2024. On 21 February 2024, Ms Renee Lobb of FTI Consulting sent correspondence to the Commission advising that the Respondent was in voluntary administration. Ms Lobb requested that the conciliation be adjourned until the outcome of the administration process was known.

• [3] The matter was subsequently referred to me for consideration. A review of the ASIC notices database showed that a general meeting of the members of the Respondent was held on 23 February 2023, where it was resolved that the Respondent would be wound up and that David McGrath of FTI Consulting had been appointed as a liquidator.

• [4] On 29 February 2024, I caused correspondence to be sent to the parties. This correspondence advised Ms Abraham that the creditors of the Respondent had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Ms Abraham to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that her claim could not proceed unless she obtained leave of the Court. Ms Abraham was requested to confirm whether she intended to seek leave of the Court by Thursday, 14 March 2024.

• [5] On 8 March 2024, in response to this correspondence, Ms Abraham sent an email to my Chambers enquiring about the process to seek leave of the Court.

• [6] Section 500(2) of the Corporations Act provides as follows:

"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."

• [7] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of "court" and "Court":

(c) the Federal Circuit and Family Court of Australia (Division 1);

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts."

• [8] Having regard to the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd,[1] I am satisfied that the Commission is not a "Court" and is therefore unable to grant the required leave as prescribed under s.500(2) of the Corporations Act. A review of relevant authorities in Silalahi v CMI Industrial (Forge)[2] further satisfies me 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.

• [9] Section 500(2) of the Corporations Act applies in this case, and I am satisfied that Ms Abraham's application cannot proceed any further with the Commission except by leave of the Court. The application is therefore stayed.

[1] (2003) 142 IR 137.

[2] [2012] FWA 7275 at [11]- [16].

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