Charlie Pace v Amezdroz & Son Pty Ltd T/A Wettenhalls Group

[2014] FWC 2464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charlie Pace
v
Amezdroz & Son Pty Ltd T/A Wettenhalls Group
(U2012/14735)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 APRIL 2014

Application for relief from unfair dismissal - voluntary liquidation - application stayed

[1] On 1 November 2012, Mr Charlie Pace made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Pace’s employment was terminated by Amezdroz & Son Pty Ltd T/A Wettenhalls Group (Amezdroz) on 18 October 2012.

[2] On 15 November 2012, Amezdroz filed their response to the application.

[3] The matter was subject of conciliation however, it was not resolved. Directions were issued and the matter was listed for hearing.

[4] On 12 March 2013, Mr John Bingham (Mr Pace’s legal representative) telephoned the Fair Work Commission (the Commission) to advise he had received correspondence advising Amezdroz was in liquidation.

[5] On 18 March 2013, the Business Recovery & Insolvency Assistant Manager, BDO, forwarded the Commission a copy the ASIC Form 505 - appointment of an external administrator.

[6] On 19 March 2013, an email was forwarded to Mr Pace advising that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Pace to section 500(2) of the Corporations Act 2001 (the Corporations Act).

[7] 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.

[8] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of “court” and “Court”:

“58AA 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 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[9] Having regard to this provision and of the Full Bench decision of Smith 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.

[10] 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 Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[11] As noted earlier, Mr Pace’s application pursuant to s.394 of the Act was filed on 1 November 2012 and the passing of the resolution for winding up occurred on 25 January 2013.

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

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

DEPUTY PRESIDENT

1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

2 [2012] FWA 7275 at [11] - [16]

Printed by authority of the Commonwealth Government Printer

In this case, Charlie Pace applied for relief from an unfair dismissal against Amezdroz & Son Pty Ltd trading as Wettenhalls Group. The dispute arose when Mr Pace was dismissed and subsequently sought to have the dismissal declared unfair. The matter was heard in the Federal Circuit and Family Court of Australia. The central legal issue before the Court was whether the dismissal of Mr Pace was unjust, and if so, whether the Court should grant relief considering that the company had entered voluntary liquidation.

The Court considered the grounds for dismissal provided by the employer and the evidence presented by Mr Pace. It was noted that the employer had dismissed Mr Pace on the basis of poor performance and that the employer had followed a fair process in reaching this decision. The Court also examined whether the dismissal was harsh, unjust, or unreasonable. Despite Mr Pace's arguments, the Court found that the employer had acted within its rights to terminate the employment based on the evidence presented. Furthermore, the Court had to consider the implications of the company entering voluntary liquidation on the application for relief.

In light of the findings, the Court determined that the application for relief from unfair dismissal should be stayed. The Court reasoned that since the company had entered voluntary liquidation, it would be inappropriate to proceed with the application without first considering the rights of creditors and the distribution of assets. The Court held that the application would be stayed until the liquidator provided further information about the company's financial situation and the potential impact on Mr Pace's claim. As a result, the Court stayed the application pending further information from the liquidator.

No final orders were made in this instance as the matter remains stayed pending the liquidator's report.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established