Bozidar Gacesa v Canso Pty Ltd T/A Preston Nissan

[2021] FWC 3347

[2021] FWC 3347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bozidar Gacesa
v
Canso Pty Ltd T/A Preston Nissan
(U2021/2859)

COMMISSIONER BISSETT MELBOURNE, 10 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 6 April 2021 Mr Bozidar Gacesa (Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. The Applicant had been employed by Canso Pty Ltd T/A Preston Nissan (Respondent), commencing on 29 February 2016, until his employment was terminated on 16 March 2021.

[2] On 13 April 2021 the Commission received correspondence in the following terms:

Dear Sir/Madam

CANSO Pty. Ltd. (Receiver and Manager Appointed) (In Liquidation)

…

I advise that the company was placed into liquidation and a receiver and manager appointed, both on 10 December 2020.

Pursuant to S500 of the Corporations Act 2001 ('Act') I request that you cancel the conciliation set to be held on Wednesday, 28 April 2021.

Both the liquidator and the Receiver and Manager have advised Mr Gacesa that his remedies lie with the Fair Entitlements Guarantee.

CORPORATIONS ACT 2001 - SECT 500

(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.

Please acknowledge this correspondence.

…

[3] A conciliation listed for the application was subsequently cancelled and the file allocated to my chambers.

[4] Subsequent to follow up correspondence from my chambers, the Receiver and Manager advised that the company had been subject to a creditors’ voluntary winding up as the company was insolvent.

[5] Consequently my chambers sent correspondence to the Applicant which said, in relevant part:

On 13 April 2021 the Commission received written advice (now clarified by email on 26 April 2021) that the Respondent company is subject to a “Creditors Voluntary Liquidation” and a receiver and manager were appointed on 10 December 2020.

In such circumstances s.500(2) of the Corporations Act 2001 applies. Section 500(2) 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.

Proceedings in the Commission are “civil proceedings”. Further, the Commission is not a “Court” as that term is used in s.500(2) above and cannot give leave for an unfair dismissal application to proceed.

In these circumstances Commissioner Bissett, Unfair Dismissal Practice Leader, has formed the view that your claim cannot proceed unless you obtain leave of the Court. 1

[6] Arising from the correspondence the Applicant sent an email to the Commission on 1 June 2021 in which he referred to a decision of the Federal Circuit Court in which the Fair Work Ombudsman secured penalties against the operator of a Hotel in Newry. 2 The press release provided by the Applicant indicated that the penalties were imposed against a Mr Williams “whose now-liquidated company” used to run the hotel. Beyond this the remainder of the email from the Applicant went to why he considered his treatment and dismissal was unfair. The Applicant relies on the case referenced in the press release, as I understand his submissions, as supportive of his claim that action can continue against the Respondent.

[7] The Receiver and Manager replied to correspondence from chambers only to the extent to confirm that, in his view, the Commission did not have power to hear and determine the application for unfair dismissal. He also said “I advise that I have ceased to trade Canso effective 30.4.2021 and I am proceeding to finalise my obligations as Receiver and Manager.”

CONSIDERATION

[8] Section 500(2) of the Corporations Act 2001 (reproduced above) places a strict limitation on the power of the Commission to deal with an application for relief from unfair dismissal once a company is subject to a creditors voluntary winding up. 3

[9] The decision in the Federal Circuit Court relied on by the Applicant does not support a conclusion that the Commission has the power either to grant leave for his application for unfair dismissal to be heard or to hear that application. In any event the proceedings in that matter were stayed against the company as it “was placed into liquidation after proceedings were commenced.” 4 Ultimately the penalty imposed was against Mr Williams and not the company in liquidation.

[10] The Applicant has otherwise put nothing before me to convince me that the Commission has the power to hear his application for relief from unfair dismissal without him obtaining leave from the Court to do so.

[11] Having regard to the decision of the Full Bench in Smith v Trollope Silverwood & Beck Pty Ltd 5, 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.

[12] In these circumstances, unless the Applicant obtains leave from the Court, I am satisfied that the Commission cannot hear or determine his application for relief from unfair dismissal. The Applicant should be aware that, in reaching this decision I draw no conclusion as to the merits of his case. Rather, my conclusion is that, absent leave from a Court, I do not have the power to hear argument as to the merits.

[13] I understand that the Applicant has been advised by the Receiver and Manager that his “remedies lie with the Attorney General’s office and the FEG program.  Fair Entitlements Guarantee (FEG) provides financial assistance to eligible employees who lose their job due to the liquidation of their employer.”

[14] I note that the Receiver and Manager has advised that he has ceased to trade the Respondent. However, the Respondent is still a registered company, although in receivership.

[15] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that the application for relief from unfair dismissal cannot proceed any further in the Commission except by leave of the Court.

[16] Therefore, the application under s.394 of the FW Act is stayed until leave of the Court is granted. Should the company be deregistered, the application will be dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR730612>

 1   The Applicant had made an application to change the name of the Respondent from that filed to the administrator.

 2   Fair Work Ombudsman v Yorktor Pty Ltd [2021] FCCA 779 (16 April 2021) (Yorktor).

 3   See Patterson v Agnes Water Tavern Pty Ltd [2012] FWA 4791, paragraph [7]; Klemm v Penrice Soda Products Pty Ltd[2016] FWC 3170 paragraph [28].

 4   Yorktor paragraph [2].

 5 (2003) 142 IR 137.