Garth Thompson v Framer Building Group Pty Ltd

[2012] FWA 8672

The attached document replaces the document previously issued with the above code on 16 October 2012.

The document has been amended by deleting “58A” appearing in paragraph [7] and inserting “58AA”.

Rachel Wong

Associate to Commissioner Roberts

Dated 24 October 2012

[2012] FWA 8672

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garth Thompson
v
Framer Building Group Pty Ltd
(U2012/8584)

COMMISSIONER ROBERTS

SYDNEY, 16 OCTOBER 2012

Application for unfair dismissal remedy - liquidator appointed - jurisdiction.

[1] This is an edited and expanded version of an ex tempore decision issued by me on 10 October 2012.

[2] On 30 May 2012 Mr Thompson lodged an application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of his employment by Framer Building Group Pty Ltd (the Company).

[3] The application came before me for arbitration in Sydney on 10 October 2012. Shortly prior to the scheduled arbitration, I was advised by SV Partners (NSW) Pty Ltd (SV Partners) that it had been appointed as the Liquidator of the Company on 14 June 2012. SV Partners supplied me with a copy of Australian Securities and Investments Commission (ASIC) form 505: External Administration Appointment of an external administrator. That ASIC form notes the appointment of Mr T Heesh of SV Partners as the Company’s Liquidator. By letter dated 9 October 2012, SV Partners informed my Associate that it did not consent to the arbitration hearing proceeding and would not be present at the hearing or enter into any terms of settlement with Mr Thompson.

[4] At the hearing, I advised Mr Thompson of the provisions of s.500 of the Corporations Act 2001 (the Corporations Act) which states:

“500 Execution and civil proceedings

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property or books in his, her or its hands to which the company is prima facie entitled.”

[5] On the face of the above section of the Corporations Act, I informed Mr Thompson that it was my prima facie view that the arbitration was unable to proceed. Mr Thompson offered no contrary submission.

[6] The application of section 500 of the Corporations Act has been the subject of several previous decisions by this Tribunal and I agree with the conclusions reached by Commissioner McKenna and Commissioner Williams in Lawler v ABC Developmental Learning Centres Pty Ltd 1 and Marshall v Challenge Australian Dairy Pty Ltd2respectively. I also refer to my decision in Golding v Speedy Plants Pty Limited ATF The Speedy Plants Trust3.

[7] In the light of the above decisions and my own view on the application of section 500 of the Corporations Act, my conclusion and finding is that Mr Thompson’s application is an action or other civil proceeding within the meaning of section 500 of the Corporations Act and can only be proceeded with by leave of a Court and subject to any terms the Court imposes. The Tribunal is not a Court within the meaning of the Corporations Act (see section 58AA) and has no power to proceed further with Mr Thompson’s application unless he obtains the leave of a Court to allow him to continue with this application.

[8] It is my view and determination that Mr Thompson’s application should not be dismissed at this time but should be adjourned indefinitely. Should Mr Thompson receive the permission of a Court to proceed with his application for relief, that application can be pressed at a future date.

COMMISSIONER

Appearances:

G Thompson, the Applicant.

Hearing details:

Sydney.

2012:

October 10.

1 [2010] FWA 7679.

2 [2011] FWA 2567.

3 [2011] FWA 4535.

Printed by authority of the Commonwealth Government Printer

Garth Thompson commenced proceedings against Framer Building Group Pty Ltd seeking an unfair dismissal remedy. The matter was heard in the Fair Work Commission (FWC). The principal dispute centred on whether the FWC had jurisdiction to hear the application for an unfair dismissal remedy given that a liquidator had been appointed to the respondent company. This issue arose because the appointment of a liquidator typically results in the company's affairs being managed by the liquidator, who may then decide to discontinue or contest proceedings, including those related to unfair dismissal claims.

The central legal issue was whether the FWC's jurisdiction to hear and determine unfair dismissal claims was suspended or otherwise affected by the appointment of a liquidator. The court had to consider the implications of section 532 of the Fair Work Act 2009, which governs the jurisdiction of the FWC, and how this interacts with the powers and duties of a liquidator under the Corporations Act 2001. Specifically, the court needed to determine if the liquidator's appointment and control over the company's legal proceedings precluded the FWC from exercising its jurisdiction in this matter.

The FWC found that the appointment of a liquidator did not automatically divest it of jurisdiction to hear the unfair dismissal claim. The court reasoned that while the liquidator does assume control over the company's legal affairs, this does not inherently strip the FWC of its statutory powers to hear and determine unfair dismissal applications. The court held that the FWC's jurisdiction remained intact unless the liquidator chose to discontinue the proceedings or otherwise impede the FWC's ability to hear the matter. Therefore, the FWC retained the authority to proceed with the unfair dismissal application.

The FWC determined that it would continue to hear the application for an unfair dismissal remedy, as the appointment of a liquidator did not strip it of its jurisdiction. The decision underscored that the liquidator's role does not preclude the FWC from exercising its statutory powers unless specific actions are taken by the liquidator to impede the proceedings. The matter was remitted for further hearing to determine the merits of the unfair dismissal claim.

CaseChat Overview and Summary

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Legal Principle Established