Graham Pearce v The Trustee for Lynch Family Trust

[2024] FWC 1790

[2024] FWC 1790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Graham Pearce
v

The Trustee For Lynch Family Trust

(U2024/5495)

DEPUTY PRESIDENT EASTON SYDNEY, 18 JULY 2024

Application for an unfair dismissal remedy

1. Mr Graham Pearce was employed by The Trustee For Lynch Family Trust until he was dismissed on 29 April 2024. On 15 May 2024, Mr Pearce filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. The Commission discovered that the Respondent was placed into liquidation on 5 June 2024. Section 500(2) of the Corporations Act 2001 (Cth) 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. On 25 June 2024, an email was sent to Mr Pearce about these matters and included the following invitation:

“Mr Pearce, Deputy President Easton has formed the preliminary view that your claim cannot proceed unless you obtain leave from a Court. If you have a different view the matter will be set down for a jurisdictional hearing. Please advise the FWC if you wish the matter to be set down for a jurisdictional hearing by close of business on 2 July 2024.”

1. An SMS was also sent to Mr Pearce telling him that an important email had been sent.

1. On 30 June 2024 Mr Pearce responded to this email expressing his disappointment with the email but not providing a response to the question posed regarding jurisdiction.

1. Further correspondence was sent to Mr Pearce on 3 July 2024 seeking an answer to the jurisdictional question posed and noted that I was considering dismissing the application under s.587(1)(c) of the Act on the basis that the application has no reasonable prospects of success due to the Commission’s lack of jurisdiction. Mr Pearce was required to respond by 5:00pm on 5 July 2024. An SMS was also sent to Mr Pearce telling him that an important email had been sent. Mr Pearce did not respond to this correspondence

1. To date, Mr Pearce has not provided a view on the jurisdiction of the Commission to hear his application while the Respondent is in liquidation nor discontinued his application.

1. Section 587 of the Act provides:

587  Dismissing applications

(1)   Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)   the application is not made in accordance with this Act; or

(b)   the application is frivolous or vexatious; or

(c)   the application has no reasonable prospects of success.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. For several weeks Mr Pearce has been on notice of a significant obstacle that most likely prevents his from continuing his case – being the operation s.500(2) of the Corporations Act 2001 (Cth). Instead of discontinuing his application or mounting an argument as to how his claim can lawfully continue, Mr Pearce has just not engaged any further with the Commission.

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Pearce’s application.

1. I have separately made an order to this effect (PR776797).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR776796>