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

[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.

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).

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

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

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.”

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.”

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.

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.

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

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.”

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.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Ms. Bryn Shearer, filed an application for unfair dismissal against her former employer, Project 88 TPF Pty Ltd, trading as Pink Flamingo Spiegelclub, under section 394 of the Fair Work Act 2009. Ms. Shearer was dismissed from her employment on 20 July 2023. She lodged her application on 10 August 2023, but the Commission later discovered that the respondent had entered voluntary liquidation on 2 September 2024. This development raised significant legal issues under section 500(2) of the Corporations Act 2001, which stipulates that no action or civil proceeding can be continued against a company in liquidation without the leave of the Court.

The primary legal issue for the Commission was whether Ms. Shearer's application for unfair dismissal could proceed given that the respondent was in liquidation. Section 500(2) of the Corporations Act 2001 imposes a strict requirement that any legal action against a company in liquidation must have the Court's leave, and failure to comply could result in the dismissal of the proceeding. The Commission also had to consider whether Ms. Shearer's application had any reasonable prospects of success under section 587 of the Fair Work Act 2009. Ms. Shearer was given multiple opportunities to seek leave from the Court or to withdraw her application, but she did not respond to these invitations. The Commission concluded that the application had no reasonable prospects of success and that it was appropriate to dismiss it under section 587(1)(c).

In light of the above, the Deputy President, Easton, dismissed Ms. Shearer's application for unfair dismissal. The Deputy President held that Ms. Shearer's failure to seek leave from the Court or to argue that her application could lawfully continue, despite being aware of the significant obstacle presented by the respondent's liquidation, meant the application had no reasonable prospects of success. The Deputy President also noted that Ms. Shearer's understandable disappointment and observations about the respondent's business activities did not provide a basis to continue the application. The dismissal was pursuant to section 587 of the Fair Work Act 2009, and an order was separately made to this effect.

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