Chao Xie v Waratah Direct Communications Pty Ltd

[2020] FWC 532

[2020] FWC 532

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, 4 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 5 December 2019 Mr Chao Xie made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Xie stated that he was notified of his termination by Waratah Direct Communications Pty Ltd (Respondent) on 15 November 2019.

[2] The matter was listed for a conciliation conference on 14 January 2020.

[3] On 9 January 2020 the Fair Work Commission (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. The Respondent provided the Commission with contact details for the Liquidator.

[4] Later that day the Commission telephoned the Liquidator on the contact details provided. The Liquidator advised the Commission that they will not participate in conciliation due to the Respondent entering into liquidation. The Liquidator also emailed correspondence to the Commission attaching an Australian Securities and Investments Commission (ASIC) Form 505 that noted CJG Advisory was appointed as Liquidator. This email correspondence was forwarded to the nominated email addresses of Mr Xie and his representative.

[5] Following receipt of the Liquidator’s email correspondence the Commission telephoned Mr Xie’s representative to advise that the conciliation could not go ahead as the Respondent’s Liquidator had advised that they would not participate.

[6] The Commission performed a check on the ASIC insolvency notices database which showed that on 19 December 2019 the company had passed a special resolution to be wound up voluntarily and CJG Advisory was appointed as Liquidator.

[7] On 10 January 2020 the Commission sent correspondence to Mr Xie’s nominated email address and postal address advising that a resolution had been passed to voluntarily wind up the company and that a Liquidator had been appointed. The letter referred Mr Xie to s.500(2) of the Corporations Act 2001 (Corporations Act) and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The letter noted that if Mr Xie no longer wished to pursue his unfair dismissal application he could file a Form F50 Notice of Discontinuance, otherwise the matter will be referred to a Member of the Commission for consideration. This correspondence was also forwarded to Mr Xie’s representative’s nominated email address.

[8] Neither Mr Xie nor his representative responded to the correspondence.

[9] Section 500(2) of the Corporations Act provides as follows:

(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.”

[10] 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 Family Court of Australia;

(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.

[11] Having regard to this provision and of 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 leave as prescribed in s.500(2) of the Corporations Act.

[12] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the FW Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[13] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Xie’s application cannot proceed any further in the Commission except by leave of the Court.

[14] Therefore, Mr Xie’s application under s.394 of the FW Act is stayed until leave of the Court is granted.

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].