Alexander Wilson v Precision Phone Pty Ltd

[2025] FWC 1766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alexander Wilson
v

Precision Phone Pty Ltd

(U2024/1269)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 26 JUNE 2025

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.

On 7 February 2024, Mr Alexander Wilson applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009, naming Precision Phone Pty Ltd as the Respondent.

Ahead of a conciliation conference listed for 10 April 2024, the Commission was advised that Andrew Juzva of GS Andrews Insolvency had been appointed as liquidator of the Respondent. The ASIC notices database showed that a general meeting of creditors on 8 March 2024 resolved that the Respondent be wound up and that Andrew Juzva of GS Andrews Advisory was appointed as the liquidator.

On 10 May 2024, Mr Wilson was advised in correspondence from the Commission of these developments. He 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.” Mr Wilson 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.

On 18 June 2024 Mr Wilson was again advised in correspondence that he would need to make an application to the appropriate court to seek leave, and that the matter cannot proceed except by leave of the Court. The correspondence advised him 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.” On 18 June 2024, Deputy President Clancy stayed the matter.

Further correspondence to Mr Wilson sent on 13 March 2025 directed him to advise by 20 March 2025 whether he had, or will be, seeking leave of the Court. Mr Wilson was advised that if no response was received, his unfair dismissal application may be dismissed without further notice. Later the same day, Mr Wilson replied to this correspondence confirming that he intended to seek leave of the Court.

Further correspondence to Mr Wilson on 6 June 2025 directed him to provide an update by 13 June 2025 as to whether he had, or will be, seeking leave of the Court. Mr Wilson was advised that if no response was received, his unfair dismissal application may be dismissed without further notice. No response was received from Mr Wilson.

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 Wilson’s application cannot proceed any further with the Commission except by leave of the Court.

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. Mr Wilson has been on notice for an extended period of a significant obstacle that prevents him from continuing his case – the need to obtain leave of a Court under s.500(2) of the Corporations Act. He has made no contact with the Commission since his email of 13 March 2025. Accordingly, I dismiss Mr Wilson’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 Alexander Wilson on 7 February 2024, is dismissed.

DEPUTY PRESIDENT

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

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

Printed by authority of the Commonwealth Government Printer

In the matter of Alexander Wilson v Precision Phone Pty Ltd, the applicant, Mr Wilson, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Precision Phone Pty Ltd, the respondent, had been wound up voluntarily, with Andrew Juzva appointed as liquidator. Mr Wilson's application was placed on hold pending his ability to obtain leave of the Court under section 500(2) of the Corporations Act 2001. The Deputy President O'Neill concluded that the application had no reasonable prospects of success and dismissed it under section 587(1)(c) of the Fair Work Act. This decision was based on Mr Wilson's prolonged inaction and lack of engagement with the Commission regarding the necessity to seek court leave.

The central legal issue addressed by the Deputy President was whether Mr Wilson's unfair dismissal application could proceed in the absence of court leave under section 500(2) of the Corporations Act. The court had to consider the established principle that the Fair Work Commission lacks the authority to grant the required leave. Furthermore, the court needed to determine whether Mr Wilson's application for unfair dismissal could be classified as a "civil proceeding" within the meaning of section 500(2) of the Corporations Act. The Deputy President confirmed that Mr Wilson's application indeed fell within this definition and concluded that the application could not proceed without the necessary court leave.

In reaching the decision, Deputy President O'Neill emphasized that the Fair Work Commission does not have the authority to grant the leave required under section 500(2) of the Corporations Act, a matter that falls within the jurisdiction of the Court. The Deputy President further established that Mr Wilson's application for unfair dismissal was indeed a "civil proceeding" as defined by section 500(2) of the Corporations Act. Given that Mr Wilson had been repeatedly notified of the need to obtain court leave and had made no effort to do so, the Deputy President found that the application had no reasonable prospects of success. Consequently, the application was dismissed under section 587(1)(c) of the Fair Work Act.

The final order of the court was to dismiss Mr Wilson's application for unfair dismissal under section 394 of the Fair Work Act 2009. The dismissal was made on the basis that the application had no reasonable prospects of success due to Mr Wilson's failure to obtain the necessary court leave under section 500(2) of the Corporations Act.

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