Chao Xie v Waratah Direct Communications Pty Ltd

[2022] FWC 2454

[2022] FWC 2454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chao Xie
v

Waratah Direct Communications Pty Ltd

(U2019/13616)

COMMISSIONER BISSETT MELBOURNE, 29 SEPTEMBER 2022

Application for an unfair dismissal remedy - deregistration - application dismissed.

1. On 4 February 2020 the Fair Work Commission (Commission) issued a Decision[1] in relation to the application by Mr Chao Xie (the Applicant) for remedy for unfair dismissal.

1. The Applicant had named Waratah Direct Communications Pty Ltd (Respondent) as the respondent entity in the Form F2 – Unfair Dismissal Application (Form F2). On 9 January 2020 the Commission received a call from the Respondent contact person who advised that the Respondent had entered into liquidation and that CJG Advisory had been appointed as the Liquidator. On 18 August 2022 the Commission confirmed, via a search on the ASIC company database that the Respondent company was in liquidation.

1. The Decision issued on 5 February 2020 stayed the Applicant’s application on the basis that the Respondent was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, the application was not able to proceed except by leave of the Court.[2]

1. On 2 September 2022 the Commission performed a search on the ASIC company database which revealed that the Respondent entity had been deregistered on 18 May 2021.

1. On 5 September 2022 the Commission wrote to the Applicant advising of the Respondent’s deregistration and that no proceedings can continue against a deregistered company.  On that basis the Applicant was given an opportunity to file a Form F50–Notice of Discontinuance (Notice of Discontinuance).  The Applicant was advised that if no Notice of Discontinuance is received by 12 September 2022 the application may be dismissed because it has no reasonable prospects of success. The Applicant did not respond to the correspondence or file a Notice of Discontinuance.

1. In the circumstances, I am satisfied that the Applicant’s application has no reasonable prospects of success. Therefore, I will exercise my power under s.587(1)(c) of the Fair Work Act 2009 to dismiss the application. An order[3] giving effect to this decision will be issued separately.

COMMISSIONER

[1] [2020] FWC 532

[2] Ibid

[3] PR745833

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