Bryn Shearer v Project 88 TPF Pty Ltd T/A Pink Flamingo Spiegelclub

[2024] FWC 2958

[2024] FWC 2958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bryn Shearer
v

Project 88 TPF Pty Ltd T/A Pink Flamingo Spiegelclub

(U2023/7417)

DEPUTY PRESIDENT EASTON SYDNEY, 28 OCTOBER 2024

Application for an unfair dismissal remedy – voluntary liquidation – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. Ms Bryn Shearer was employed by Project 88 TPF Pty Ltd t/a Pink Flamingo Spiegelclub until she was dismissed on 20 July 2023. On 10 August 2023, Ms Shearer filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. Ms Shearer’s proceedings were adjourned for a period of time at Ms Shearer’s request.

1. The Commission discovered that the Respondent was placed into liquidation on 2 September 2024.

1. Section 500(2) of the Corporations Act 2001 (Cth) 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. On 5 September 2024, correspondence was sent to Ms Shearer about this matter and included the following invitation:

“The Deputy President is prepared to hold the claim open for a reasonable period to allow you to apply to a court for leave (i.e. permission to continue your claim) if that is what you want to do. Please understand that if the Respondent remains in liquidation and you do not apply to a Court for leave (or if your application is not successful), the Deputy President will consider dismissing the application under s.587 (see: Garwood v Damann Pty Ltd [2020] FWC 4555).

Please advise by no later than 4:00pm on 13 September 2024 whether:

(a) you have sought/obtained leave from a relevant Court to proceed with the application; or

(b) you wish to withdraw/discontinue the application.”

1. Ms Shearer responded, however Ms Shearer did not provide any indication that she had sought leave from a relevant court to proceed with the application, or that she intended to apply to a court.

1. Further correspondence was sent to Ms Shearer on 8 October 2024 providing a further opportunity to respond. Ms Shearer was also advised that her application was in danger of being dismissed for having no reasonable prospects of success.

1. To date, Ms Shearer has not provided a response regarding s.500(2) of the Corporations Act 2001.

1. Section 587 of the Fair Work Act 2009 provides:

“587      Dismissing applications

(1)       Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or

(b)       the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. For several weeks Ms Shearer has been on notice of a significant obstacle that most likely prevents her from continuing her case – being the operation s.500(2) of the Corporations Act 2001 (Cth). Instead of discontinuing her application or mounting an argument as to how her claim can lawfully continue, Ms Shearer could only express her understandable disappointment and noting that the respondent’s business appears to still be trading unimpaired.

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Shearer’s application.

1. I have separately made an order to this effect (PR780577).

DEPUTY PRESIDENT

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