Alicia Denis v Staffnet Australia Pty Ltd T/A Chefnet Staff NSW

[2013] FWC 9382

[2013] FWC 9382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alicia Denis
v
Staffnet Australia Pty Ltd T/A Chefnet Staff NSW
(U2013/2155)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 3 July 2013, Ms Alicia Denis made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Denis’ employment was terminated by Staffnet Australia Pty Ltd trading as Chefnet Staff NSW (Chefnet) on 13 June 2013.

[2] On 2 August 2013, Chefnet filed their response to the application.

[3] Conciliation was listed however it could not take place as Chefnet wanted their jurisdictional objection determined first. Directions were issued and the matter was listed for hearing.

[4] On 31 October 2013, the Fair Work Commission (the Commission) received correspondence from Ms Denis advising that Chefnet was in voluntary liquidation. Attached to that email was a Notice of Appointment as Liquidator which indicates that on 17 October 2013 it was resolved that the company be wound up and have a liquidator appointed.

[5] On 8 November 2013, the Commission sent correspondence to Ms Denis which advised that the Commission had formed the preliminary view that her claim for unfair dismissal cannot proceed without leave of the Court, in accordance with s.500(2) of the Corporations Act. Ms Denis was requested to advise the Commission by 15 November 2013 if she had a different view and if so, the matter would be set down for a jurisdictional hearing.

[6] The Commission did not receive any material from Ms Denis.

[7] Section 500(2) of the Corporations Act 2001 (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.

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

“58AA 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 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[9] Having regard to this provision and of the Full Bench decision of Smith 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.

[10] 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.

[11] As noted earlier, Ms Denis’ application pursuant to s.394 of the Act was filed on 3 July 2013 and the passing of the resolution for winding up occurred on 17 October 2013.

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

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

DEPUTY PRESIDENT

 1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

 2   [2012] FWA 7275 at [11] - [16]

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