Derek Maxfield v O'Brien Boiler Services Western Australia Pty Ltd

[2014] FWC 7821

[2014] FWC 7821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Derek Maxfield
v
O’Brien Boiler Services Western Australia Pty Ltd
(U2014/12581)

COMMISSIONER WILLIAMS PERTH, 6 NOVEMBER 2014

Termination of employment - voluntary administration.

[1] On 17 September 2014, Derek Maxfield (Mr Maxfield) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The respondent employer is O’Brien Boiler Services Western Australia Pty Ltd (the respondent).

[2] The respondent’s response filed advised that it had been placed into voluntary administration on 1 October 2014.

[3] On 31 October 2014 the solicitors for Gideon Rathner, the previously appointed administrator, advised that a meeting of the respondent’s creditors had on 30 October 2014 resolved that the company be wound up and that their client had been appointed as the liquidator.  

[4] An ASIC search has confirmed this to be the case.

[5] Section 500(2) of the Corporations Act 2001 (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.”

[6] 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.”

[7] Having regard to this provision and of the Full Bench decision of Smith & Ors v Trollop 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.

[8] An application pursuant to s.394 of the Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act 2.

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

[10] This means that because the company is in liquidation this application cannot be dealt with further unless Mr Maxfield applies to one of the “Courts” listed above and that Court agrees to give this Commission permission to proceed to hear his application.

[11] This application for an unfair dismissal remedy is stayed until leave of the Court is granted.

COMMISSIONER

 1 (2003) 142 IR 137

 2   Silalahi v CMI Industrial (Forge) [2012] FWA 7275

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