Amy Parkes v DACAN Pty Ltd

[2023] FWC 1409

[2023] FWC 1409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amy Parkes
v

DACAN Pty Ltd

(U2023/840)

COMMISSIONER HUNT BRISBANE, 16 JUNE 2023

Application for an unfair dismissal remedy – voluntary administration - application stayed.

1. On 7 February 2023, Ms Amy Parkes made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that she had been dismissed from her employment with DACAN Pty Ltd (the Respondent) and that her dismissal was harsh, unjust and unreasonable.

1. The Respondent raised a jurisdictional objection that the dismissal was a case of genuine redundancy. On 6 March 2023, I issued directions requiring both parties to file material in preparation for a hearing of this matter to be conducted in-person in Brisbane on 3 May 2023. The directions and hearing were ultimately vacated on 26 April 2023 after the parties reported that they had reached an in-principle settlement.

1. I had not heard from the parties since this date and therefore I caused my chambers to seek an update on the status of the matter on 17 May 2023.  The Respondent advised that it had been placed into voluntary administration on 10 May 2023 and accordingly the application is automatically stayed.

1. I wrote to the parties informing them of my preliminary view that the Respondent is not correct in its assertion that the proceedings are automatically stayed, noting the decisions of Bird v 4D Joinery Pty Ltd T/A 4D Joinery Pty Ltd[1] and Vieritz v YEO & CO. PTY LTD.[2] As a result, I proposed to list the matter for a telephone conference on 1 June 2023 if the matter cannot be resolved by the parties.

1. The conference proceeded as proposed. Following the conference, the Respondent provided chambers a copy of the Administrators’ section 439A Report to Creditors dated 25 May 2023. Shortly after, the Respondent advised that the outcome of the second meeting of creditors is for the Respondent to be wound up. Messers Gavin Moss and Henry Kwok of Chifley Advisory have been appointed as Joint and Several Liquidators.

1. Section 500(2) of the Corporations Act 2001 (the Corporations Act) provides:

“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.”

1. 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 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.”

1. In Smith & Ors v Trollop Silverwood & Beck Pty Ltd,[3] the Full Bench held that the Commission is not a ‘Court’ and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.

1. Further, in Silalahi v CMI Industrial (Forge),[4] 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.

1. Having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.

1. Accordingly, Ms Parkes’ application is stayed until leave of the Court is granted.

COMMISSIONER

[1] [2020] FWC 594.

[2] [2016] FWC 4907.

[3] (2003) 142 IR 137.

[4] [2012] FWA 7275 at [11] – [16].

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