Aeron Salas v Doughnut Time Services Pty Ltd T/A Doughnut Time

[2018] FWC 4375

[2018] FWC 4375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aeron Salas
v
Doughnut Time Services Pty Ltd T/A Doughnut Time
(U2018/1970)

COMMISSIONER BISSETT MELBOURNE, 26 JULY 2018

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

[1] On 27 February 2018, Mr Aeron Salas made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Salas was notified of his termination by Doughnut Time Services Pty Ltd t/a Doughnut Time (Doughnut Time) on 19 February 2018.

[2] On 28 February 2018, a Notice of Listing was sent to the parties scheduling a conciliation on 22 March 2018.

[3] On 20 March 2018, Doughnut Time sent an email to the Commission advising that it was in liquidation and requesting that future contact be made with the liquidator, Menzies Advisory – Liquidators & Receivers (Menzies Advisory). The Notice of Listing containing the details of the conciliation was forwarded to Menzies Advisory by the Commission on the same day.

[4] On 21 March 2018, Menzies Advisory telephoned the Commission advising that it was not in a position to attend the conciliation. Subsequently, the conciliation was cancelled and the matter was referred to arbitration.

[5] The Commission performed a check on the ASIC insolvency notices database which confirmed that on 9 March 2018 at a general meeting of the company’s members, a resolution was passed for the company to be wound up voluntarily.

[6] On 23 March 2018, the Commission wrote to Mr Salas and advised him that the creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Salas to s.500(2) of the Corporations Act 2001 (Cth) (Corporations Act) and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. Mr Salas was advised that if he had a different view, the matter would be set down for a Telephone Mention and he was to advise the Commission by close of business on 3 April 2018 if he wished for this to occur.

[7] On 3 April 2018, Mr Salas telephoned the Commission and was advised that if his application was stayed, he would need to seek leave from the Court to proceed with his application. In response to this advice, Mr Salas expressed his intention to continue his matter.

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

“(2) 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.”

[9] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of “court” and “Court”:

“(1) Subject to subsection (2), in this Act:

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(c) the Family Court of Australia;

(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.”

[10] Having regard to this provision and of 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 leave as prescribed in s.500(2) of the Corporations Act.

[11] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found 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.

[12] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Salas’ application cannot proceed any further in the Commission except by leave of the Court.

[13] Therefore, Mr Salas’ application under s.394 of the Act is stayed until leave of the Court is granted.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR609280>

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].