Emil Vartazarian v Cool Breeze Clothing Pty Ltd T/A Dimmeys

[2020] FWC 2596

[2020] FWC 2596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emil Vartazarian
v
Cool Breeze Clothing Pty Ltd T/A Dimmeys
(U2020/3145)

COMMISSIONER BISSETT MELBOURNE, 26 MAY 2020

Application for an unfair dismissal remedy.

[1] On 17 March 2020 Mr Emil Vartazarian made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Mr Vartazarian stated that he was notified of his termination by Cool Breeze Clothing Pty Ltd T/A Dimmeys on 17 March 2020.

[2] The matter was listed for a conciliation conference on 22 April 2020. The matter did not settle at conciliation.

[3] On 23 April 2020, the Commission sent to the parties a Notice of Listing advising that the matter was listed for Arbitration Conference/Hearing on 29 – 30 June 2020. Directions for filing material were set.

[4] On 28 April 2020 the Respondent emailed correspondence to the Commission advising that the Respondent company had gone into liquidation. The email correspondence provided contact details for the liquidator, which was Hall Chadwick.

[5] On 4 May 2020 the Commission emailed the liquidator Hall Chadwick on the contact details provided by the Respondent and requested the notice of liquidation.

[6] Later that day, the liquidator emailed the Form 505 Notification of Appointment from Australian Securities & Investments Commission (ASIC) that stated that Hall Chadwick had been appointed liquidator of the Respondent’s voluntary liquidation. The Commission forwarded this email correspondence to Mr Vartazarian.

[7] On 5 May 2020 the Commission emailed correspondence to Mr Vartazarian advising that a resolution had been passed to voluntarily wind up the Respondent company and that a Liquidator had been appointed. The letter referred Mr Vartazarian to s.500(2) of the Corporations Act and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The letter noted that if Mr Vartazarian no longer wished to pursue his unfair dismissal application he should file a Form F50 Notice of Discontinuance within seven days, otherwise the application would be referred to a Member of the Commission for consideration.

[8] On 10 May 2020 Mr Vartazarian filed submissions in relation to his unfair dismissal application.

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

[10] Section 58AA of the Corporations Act provides the definition in relation to the meaning of “court” and “Court”.

[11] Having regard to the decision of the Full Bench in Smith v Trollope 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.

[12] In Silalahi v CMI Industrial (Forge) 2, Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the FW Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[13] I acknowledge Mr Vartazarian’s submissions and the issues he raises in respect to his employer and the effect he says that his termination has had on him. The legislation on this issue however is clear, the Commission is unable to grant leave for his unfair dismissal application to continue in these circumstances. Leave can only be granted by a Court, regardless of the purported merits of Mr Vartazarian’s case.

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

[15] Therefore, Mr Vartazarian’s application under s.394 of the FW Act is stayed until leave of the Court is granted.

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].