Deborah Ayres v Fire Services Employment Pty Ltd

[2019] FWC 5636

[2019] FWC 5636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Ayres
v
Fire Services Employment Pty Ltd
(U2019/5306)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 10 May 2019, Ms Deborah Ayres made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application, Ms Ayres named Fire Service Employment Pty Ltd with ABN 60 158 289 948 as the Respondent. A review of the ABN on ABN Lookup revealed that the entity name is “Fire Services Employment Pty Ltd” and I note that Ms Ayres subsequently refers to the Respondent as Fire Services Employment in her application. I have therefore determined to amend the application for unfair dismissal remedy so as to record “Fire Services Employment Pty Ltd” (FSE) as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act.¹

[3] On 25 June 2019, the Commission received an email from SV Partners advising that it had been appointed as liquidator of FSE on 18 April 2019 and that it did not intend to attend the conciliation that had been listed for 26 June 2019.

[4] A review of the ASIC insolvency notices database showed that at a meeting of creditors on 18 April 2019, it was resolved that FSE be wound up and that Mr David Michael Stimpson of SV Partners would be appointed liquidator.

[5] On 3 July 2019, I caused correspondence to be sent to Ms Ayres, via email and post, advising that the creditors of FSE had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Ms Ayres to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that her claim cannot proceed unless she obtained leave from the Court.

[6] To date, no further contact from Ms Ayres has been made with the Commission.

[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”:

“(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.”

[9] Having regard to this provision and of the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd, 2 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), 3 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] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Ms Ayres’ application cannot proceed any further in the Commission except by leave of the Court.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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1 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

 2 (2003) 142 IR 137.

 3   [2012] FWA 7275 at [11]-[16].