Andrea Gjinaj v Luan & RO Pty Ltd - [2025] FWC 2592

[2025] FWC 2592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Andrea Gjinaj
v

Luan & RO Pty Ltd

(C2025/3940)

DEPUTY PRESIDENT DOBSON

BRISBANE, 2 SEPTEMBER 2025

Application to deal with contraventions involving dismissal– voluntary winding up – s.491 and s.500 Corporations Act – no civil proceedings – no leave of the court - application dismissed

Mr Andrea Gjinaj (Applicant) was employed by Luan & RO Pty Ltd (Respondent) from 1 August 2024 until his employment came to an end on 22 April 2025.

On 13 May 2025, the Applicant made an application for a General Protection involving dismissal under s.365 of the Fair Work Act 2009 (the Act).

The Respondent raised two jurisdictional objections, that the Applicant was not an employee but rather a franchisee and that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was dismissed in accordance with the definition in s.386 of the Act.

Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.

Directions were issued for the filing of material, and the matter was heard in person on 27 August 2025. Both parties were self-represented.

At the beginning of the hearing, it became apparent that the Respondent had passed a motion for the voluntary winding up of the company pursuant to s.491 of the Corporations Act 2001 (Cth) on 7 July 2025.[2]

Section 500 of the Corporations Act 2001 (Cth) provides as follows:

“500 Execution and civil proceedings

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2592
Decision Date: 2 SEPTEMBER 2025

CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with an application by Mr Andrea Gjinaj against Luan & RO Pty Ltd, concerning alleged general protections violations under the Fair Work Act 2009 (the Act). Mr Gjinaj sought to establish that he was dismissed by the Respondent company. The Respondent raised jurisdictional objections, arguing that Mr Gjinaj was not an employee but a franchisee and that there was no dismissal. The FWC had to determine whether Mr Gjinaj was dismissed within the meaning of the Act before proceeding with the dispute.

The legal issues the court had to decide involved establishing whether Mr Gjinaj was an employee, whether he was dismissed, and whether the FWC had the authority to proceed with the application given the company's voluntary winding up under the Corporations Act 2001. The Commission needed to examine if it had the requisite jurisdiction to hear the matter after the company had passed a resolution for voluntary winding up, as per Section 500 of the Corporations Act.

The Deputy President found that Mr Gjinaj’s application could not proceed in the Commission without the leave of the court, as per Section 500 of the Corporations Act. The FWC was not considered a "Court" under Section 58AA of the Corporations Act and, therefore, lacked the authority to grant the necessary leave. The application was also found to be frivolous or vexatious, and without reasonable prospects of success. Consequently, the Deputy President dismissed Mr Gjinaj’s application under Section 587 of the Fair Work Act.

The court issued an order dismissing Mr Gjinaj’s application. The decision was based on the inability of the FWC to proceed without leave of the court, given the company's voluntary winding up, and the frivolous nature of the application.

Orders