Christopher Nesterowich v Pitt & Co (Aust) Pty Ltd T/A Signtec - Visual Solutions

[2016] FWC 4677

[2016] FWC 4677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Nesterowich
v
Pitt & Co (Aust) Pty Ltd T/A Signtec - Visual Solutions
(U2016/3989)

COMMISSIONER BOOTH BRISBANE, 18 JULY 2016

Termination of employment - Liquidation

[1] Mr Christopher Nesterowich sought unfair dismissal relief after his employment with Pitt & Co (Aust) Pty Ltd t/a Signtec - Visual Solutions (Pitt & Co) was terminated. Mr Nesterowich made the application on 21 January 2016.

[2] On 3 March 2016 Pitt & Co objected to the application on the grounds that it had ceased trading and was “going into voluntary liquidation”.

[3] The Fair Work Commission (the Commission) was advised by Mr Trevor Pitt on 8 March 2016 that Pitt & Co was to go into voluntary liquidation on 8 March 2016.

[4] The Commission was further advised on 17 March 2016 by Hall Chadwick, Chartered Accountants, that Pitt & Co on 15 March 2016 had resolved under s.491(1) of the Corporations Act 2001 (Cth) that it would be wound up, and that representatives of Hall Chadwick be appointed liquidators. Hall Chadwick also provided a report to creditors estimating a significant deficiency in assets against liabilities.

[5] The Corporations Act2001 provides for a stay in proceedings in certain circumstances:

471B Stay of proceedings and suspension of enforcement process

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation to property of the company; or

(b) enforcement process in relation to such property; except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

500 Execution and civil proceedings

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property or books in his, her or its hands to which the company is prima facie entitled.

[6] In this case, Pitt & Co is under administration by resolution made under s.491(1), and s.500(2) applies.

[7] While it is well established by Full Bench decisions that s.471B does not apply to unfair dismissal proceedings, 1 several single member decisions have held that s.500 does apply, and that the Commission is not a court for the purposes of giving leave under s.500(2).2 The circumstances of this case are not materially different from those other matters, and I adopt the reasoning of those decisions.

[8] Accordingly the Commission has no jurisdiction to proceed with this matter without leave of the relevant Court. The fact that the resolution was passed after the application was lodged makes no difference.

[9] It should be noted that given the state of affairs of Pitt & Co, it is possible that this application would have no reasonable prospects of success for the purposes of s.587(1)(c) and be liable to be dismissed.

[10] Orders will issue:

(a) changing the name of the respondent to Pitt & Co (Aust) Pty Ltd (in liquidation);
(b) staying the application until the leave of the court is granted;
(c) requiring the Applicant to file and serve within 28 days either:

(i) notice of his intention to make application to the relevant court for leave under s.500(2) of the Corporations Act 2001 (Cth); or
(ii) notice of discontinuance.

[11] A copy of this decision and the order are to be served on Hall Chadwick.

COMMISSIONER

 1   Smith and Ors v Trollope Silverwood & Beck Pty Ltd (2003) 142 IR 137; Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWCFB 5279

 2   eg Hoang v Electrodata Recorders Pty Ltd[2014] FWC 1279 (application stayed, and later dismissed as having no reasonable prospects of success: [2016] FWC 2102); Lawler v ABC Developmental Learning Centres Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed)[2010] FWA 7679 (application stayed)

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