Danika Cross v Life Style Store Pty Ltd

[2024] FWC 2179

[2024] FWC 2179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danika Cross

v

Life Style Store Pty Ltd

(U2024/4915)

DEPUTY PRESIDENT ROBERTS SYDNEY, 16 AUGUST 2024

Application for an unfair dismissal remedy – application dismissed

1. On 30 April 2024 Ms. Danika Cross (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Act). The respondent to the application was Life Style Store Pty Ltd (Respondent). The Applicant alleged that the termination of her employment took effect on 10 April 2024. 

1. A response to the application was filed by the Respondent on 13 May 2024 in which it was said that the applicant had not been dismissed by the respondent but that a third party had unlawfully taken control of the Respondent and the business premises of the Respondent as a mortgagee in possession and that the Respondent was taking legal action to address the situation. 

1. The Commission was subsequently advised that on 11 June 2024, Mr. Mark Robinson and Mr. Ken Whittingham from the firm Fort Restructuring were appointed as joint and several administrators of the respondent company.  

1. On 12 June 2024, the administrators sent correspondence to the Applicant advising of their appointment and indicating that the Respondent had ceased to trade and was without funds. They said that as a consequence, the Applicant’s employment was being terminated with immediate effect. 

1. On 18 June 2024 the Commission issued directions for the filing of evidence by the parties. The Applicant was directed to file material in support of the application by 2 July 2024. The matter was listed for hearing on 25 July 2024. 

1. The administrators later advised that following a second meeting of creditors on 16 July 2024, it was resolved that the company would be placed into liquidation and that the administrators had also been appointed as joint and several liquidators of the respondent. 

1. On 18 July 2024 my Chambers wrote to the parties pointing out the advice that the Respondent was in liquidation and indicating that in the circumstances, s.500(2) of the Corporations Act 2001 (Corporations Act) may be applicable to the matter. Section 500(2) provides:

Execution and civil proceedings

…

(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.

…

1. It was put to the parties that the hearing on 25 July may not be able to proceed. The Applicant was given an opportunity to provide further submissions by 19 July 2024 as to why the hearing should not be vacated. It was also noted that the Applicant had failed to comply with the Commission's directions and had not filed any material in support of the application. 

1. No response to the abovementioned correspondence was received from the Applicant and the hearing date was vacated. 

1. On 26 July 2024 I again wrote to the parties and directed the Applicant to advise in writing by 4pm on Wednesday 31 July 2024 whether it was their intention to seek the leave of the Court under s.500(2) of the Corporations Act to allow the matter to proceed and if so, when such an application would be made. I also advised that in the absence of any response from the Applicant by this time, it would be taken that the Applicant does not intend to make such application. No response was received.

1. On 13 August 2024 I wrote to the parties confirming that no response had been received to previous correspondence, that the Commission’s directions had not been complied with and that there was no evidence filed in support of the application. I provided the Applicant with a final opportunity to provide any material in support of the application by 4pm on 14 August 2024. The parties were advised that in the absence of a response, the matter would be dealt with on the basis of the available material and may be dismissed without further notice to the parties. 

1. Nothing was received in response to the correspondence referred to above. 

1. In Klemm v. Penrice Soda Products Pty Ltd[1] Commissioner Hampton (as he then was) took the view that in the absence of advice that the applicant in that matter had not taken steps to obtain a court order under s.500(2) within a certain time period, the application would be dismissed.[2] That approach presupposes that dismissing a matter is not “proceeding with” an action for the purpose of s.500(2). Having regard to the context in which s.500(2) appears and the evident purpose of the provision, including to avoid the result that “a corporation in liquidation would be subjected to a multiplicity of actions that would be both expensive and time-consuming, as well as in some cases completely unnecessary”[3], and assuming that s.500(2) applies here, I do not think that the subsection operates to prevent me from dealing with the matter by dismissing the application on the basis that there is insufficient material before me for the application to succeed. I have formed that view about the effect of s.500(2) however without the benefit of any argument from the parties.

1. In the absence of sufficient evidence from the applicant to support her claim for unfair dismissal, I cannot be satisfied that the applicant was unfairly dismissed within the meaning of s.385 of the Act. 

1. The application is dismissed. 

DEPUTY PRESIDENT

[1] [2016] FWC 3170.

[2] Ibid at [53].

[3] Rushleigh Services Pty Ltd v Forge Group Ltd (in liq) (recs and mgrs apptd) [2016] FCA 1471 at [15(c)] per Foster J.

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