Anthony Snellman v Civil Labour Hire Pty Ltd

[2024] FWC 743

[2024] FWC 743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Snellman
v

Civil Labour Hire Pty Ltd

(U2023/13157)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MARCH 2024

Application for an unfair dismissal remedy – voluntary liquidation – application stayed.

1. On 27 December 2023, Mr Anthony Snellman made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was filed by Mr Snellman’s representative Unfair Dismissal Experts and named Civil Labour Hire Pty Ltd as the Respondent (the Respondent) to the application.

1. On 18 January 2024, the Commission received correspondence from Matthew Laba of Raft Consulting advising that the Respondent had entered into a creditors’ voluntary liquidation on 19 December 2023. Attached to this correspondence was an ASIC Form 505 confirming the above details, and further, confirming that Dane Skinner of Raft Consulting had been appointed as liquidator.

1. The matter was subsequently referred to me for consideration. A review of the ASIC notices database showed that a general meeting of the members of the Respondent was held on 19 December 2023, and it was resolved that the Respondent would be wound up.

1. On 29 February 2024, I caused correspondence to be sent to Mr Snellman and his representative. This correspondence advised Mr Snellman that the creditors of the Respondent had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Snellman to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that his claim could not proceed unless he obtained leave of the Court. Mr Snellman was requested to confirm whether he intended to seek leave of the Court by Thursday, 14 March 2024. No correspondence has been received in reply from Mr Snellman.

1. On 19 March 2024, further correspondence was sent from my Chambers to Mr Snellman and his representative. This correspondence advised that I would proceed to issue a Decision staying the matter, and that no further action would be taken by the Commission until such time as it is notified that leave of the Court has successfully been obtained.

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

   “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”:

“(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. Having regard to the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd,[1] I am satisfied that the Commission is not a “Court” and is therefore unable to grant the required leave as prescribed under s.500(2) of the Corporations Act. A review of relevant authorities in Silalahi v CMI Industrial (Forge)[2] further satisfies me 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. Section 500(2) of the Corporations Act applies in this case, and I am satisfied that Mr Snellman’s application cannot proceed any further with the Commission except by leave of the Court. The application is therefore stayed.

DEPUTY PRESIDENT

[1] (2003) 142 IR 137.

[2] [2012] FWA 7275 at [11]-[16].

Printed by authority of the Commonwealth Government Printer

<PR772627>