Dominik Jakub Gunia v The Trustee For The Hercules Group Services Unit Trust

[2024] FWC 872

[2024] FWC 872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dominik Jakub Gunia

v

The Trustee For The Hercules Group Services Unit Trust

(U2024/1021)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 APRIL 2024

Application for an unfair dismissal remedy – voluntary liquidation – application stayed.

1. On 31 January 2024, Mr Dominik Jakub Gunia made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application named The Trustee For The Hercules Group Services Unit Trust as the Respondent (the Respondent) to the application.

1. On 4 March 2024, the Commission was advised that the Respondent was in liquidation. On 6 March 2024, the Commission received correspondence from WLP Restructuring. This correspondence attached an ASIC Form 505 which confirmed that Hercules Group Services Pty Ltd was subject to a creditors’ voluntary liquidation and that Alan Lee Walker of WLP Restructuring had been appointed as liquidator.

1. The matter was subsequently referred to me for consideration.

1. On 7 March 2024, I caused correspondence to be sent to Mr Gunia. This correspondence advised Mr Gunia that the creditors of Hercules Group Services Pty Ltd had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Gunia to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that his claim could not proceed unless he obtained leave of the Court. Mr Gunia was requested to confirm whether he intended to seek leave of the Court by Thursday, 21 March 2024. No correspondence has been received in reply from Mr Gunia.

1. On 22 March 2024, further correspondence was sent from my Chambers to Mr Gunia. This correspondence advised that I would proceed to issue a Decision staying the matter, and that no further action would be taken by the Commission until such time as it is notified that leave of the Court has successfully been obtained.

1. Section 500(2) of the Corporations Act provides as follows:

   “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. 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 Federal Circuit and Family Court of Australia (Division 1);

(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.”

1. Having regard to the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd,[1] I am satisfied that the Commission is not a “Court” and is therefore unable to grant the required leave as prescribed under s.500(2) of the Corporations Act. A review of relevant authorities in Silalahi v CMI Industrial (Forge)[2] further satisfies me 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.

1. Section 500(2) of the Corporations Act applies in this case, and I am satisfied that Mr Gunia’s application cannot proceed any further with the Commission except by leave of the Court. The application is therefore stayed.

DEPUTY PRESIDENT

[1] (2003) 142 IR 137.

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

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