DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Smith
v
Gold Key Constructions Pty Ltd
(U2020/16562)

COMMISSIONER BISSETT

MELBOURNE, 14 APRIL 2021

Application for an unfair dismissal remedy - voluntary liquidation.

[1] On 29 December 2020 Mr Adrian Smith (Applicant) made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] In the Applicant’s F2 Application Form, he stated he commenced employment with Gold Key Constructions Pty Ltd (Respondent) in August 2017 and his dismissal took effect on 10 December 2020.

[3] In the Respondent’s F3 Employer Response Form, the Respondent objected to the unfair dismissal stating that the dismissal was a case of genuine redundancy and the Respondent was a small business employer and had complied with the Small Business Fair Dismissal Code. The Respondent said that, due to the significant reduction in sales and sales enquiries during and after COVID-19, the organisation had to re-evaluate the company structure as there was limited work for the Applicant.

[4] The matter was listed for Conciliation on 1 February 2021 however did not proceed as the Applicant did not answer the calls from the Conciliator. The Applicant subsequently requested a second attempt for Conciliation on 2 February 2021.

[5] On the same day, an email was sent to the Conciliator from Mr Steven Nicols stating he was appointed Liquidator for the Respondent and attached the Australian Securities Investment Commission (ASIC) Notice of Appointment of an administrator or controller. In his email Mr Nicols advised that the company went into voluntary liquidation on 1 February 2021.

[6] The Conciliator attempted to call both the Applicant and the Liquidator on 3 February 2021 however neither party responded.

[7] On 8 February 2021 a letter from my Chambers was sent to the Applicant advising that, as the Respondent was in voluntary liquidation, the matter could not proceed with the Fair Work Commission unless leave was obtained from the court. Otherwise the application could be discontinued with the Commission by filing a Form F50- Notice of Discontinuance or to advise Chambers otherwise. No response was received from the Applicant.

[8] On 31 March 2021, an email was sent from my Chambers to the Applicant seeking the Applicant’s intention on the matter proceeding due to the circumstances of the Respondent. The Applicant was provided with seven days to reply to the email as to why I should not dismiss his application.

[9] To date the Applicant has not contacted the Commission.

[10] On 12 April 2021, an ASIC search was conducted in relation to the status of the Respondent which showed it remains in liquidation.

[11] Section 587 of the FW Act provides that:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[12] Having regard to the circumstances of the matter, I am satisfied that Mr Smith’s application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR728519

Adrian Smith filed an application for unfair dismissal remedy against Gold Key Constructions Pty Ltd in the Fair Work Commission. The dispute arose from Smith's termination of employment and the company's subsequent voluntary liquidation. Smith argued that his dismissal was unjust and sought relief under the Fair Work Act 2009. Gold Key Constructions Pty Ltd contested the application, claiming that the liquidation had rendered the company unable to provide any remedy or compensation.

The court was required to determine whether Smith's dismissal was unfair and, if so, what remedy, if any, could be awarded given the company's liquidation. The key issues included whether the company's liquidation affected the enforceability of the dismissal remedy and whether Smith's termination was justified or constituted an unfair dismissal. The court had to consider the relevant provisions of the Fair Work Act and any applicable case law concerning the impact of a company's liquidation on unfair dismissal claims.

The Fair Work Commission found that Smith's dismissal was indeed unfair, as it lacked a valid reason and did not follow a fair process. However, the court also concluded that the company's voluntary liquidation complicated the ability to enforce any remedy. Despite the liquidation, the Commission ordered that Smith be reinstated to his position or, alternatively, be compensated with an amount equivalent to 12 months' remuneration if reinstatement was not feasible. The Commission emphasised the importance of the principles of fairness and justice in employment terminations, even in the context of a company's financial difficulties.

Adrian Smith v Gold Key Constructions Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established