Anandarajah Sivaram v Altech Computers Corporation Pty Ltd T/A Altech Computers

[2016] FWC 6192

[2016] FWC 6192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anandarajah Sivaram
v
Altech Computers Corporation Pty Ltd T/A Altech Computers
(U2016/3735)

COMMISSIONER WILSON MELBOURNE, 31 AUGUST 2016

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

[1] On 7 January 2016, Mr Anandarajah Sivaram made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Mr Sivaram’s employment was terminated by Altech Computers Corporation Pty Ltd on 23 December 2015.

[2] On 29 February 2016, the Commission received correspondence advising that Altech Computers Corporation Pty Ltd was in voluntary liquidation.

[3] PPB Advisory advised the Commission that Altech Computers objected to Mr Sivaram’s application pursuant to section 471B of the Corporations Act 2001.

[4] The matter was subject of conciliation on 1 March 2016 however, it was not resolved.

[5] On 6 April 2016, PPB Advisory provided the Commission with a copy of the ASIC Form 505, External Administration Appointment of an external administrator which indicates that the creditors had resolved to voluntarily wind up the company on 19 January 2016.

[6] On 6 April 2016, the Commission wrote to Mr Sivaram advising him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Sivaram to section 500(2) of the Corporations Act 2001.

[7] Mr Sivaram was invited to be heard in relation to the Commission’s position if he disagreed.

[8] On 14 April 2016, Mr Sivaram advised the Commission he wished his matter be set down for jurisdictional hearing.

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

[10] Section 58AA of the Corporations Act 2001 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.”

[11] 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 section 500(2) of the Corporations Act 2001.

[12] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found that an application pursuant to section 394 of the Fair Work Act 2009 falls within the meaning of “civil proceedings” in section 500(2) of the Corporations Act 2001.

[13] As noted earlier, Mr Sivaram’s application pursuant to section 394 of the Fair Work Act 2009 was filed on 7 January 2016 and the passing of the resolution for winding up occurred on 19 January 2016.

[14] Taking into account the provisions set out in section 500(2) of the Corporations Act 2001, I am satisfied that Mr Sivaram’s application cannot proceed any further in the Commission except by leave of the Court.

[15] Therefore, Mr Sivaram’s application under section 394 of the Fair Work Act 2009 is stayed until leave of the Court is granted.

COMMISSIONER

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

 2   [2012] FWA 7275 at [11] - [16]

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