Grant Chapple v Riverside Meats

[2018] FWC 4917

[2018] FWC 4917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Grant Chapple
v
Riverside Meats
(U2018/3084)

COMMISSIONER WILSON MELBOURNE, 23 AUGUST 2018

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

[1] On 23 March 2018, Mr Grant Chapple made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was filed on Mr Chapple’s behalf by his legal representative.

[2] Mr Chapple named Riverside Meats as the respondent entity in his Form F2 – Unfair Dismissal Application (Form F2). Mr Chapple further stated in his Form F2 that his employment had been terminated by Riverside Meats on 6 March 2018 because ‘the business was shutting down’.

[3] On 27 March 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 24 April 2018.

[4] On 24 April 2018, the Commission telephoned Riverside Meats who advised that it was in liquidation and that Bent & Cougle had been appointed as liquidator. Following this, the Commission telephoned Bent & Cougle and was advised that it did not wish to participate in the conciliation. As a result, the conciliation could not proceed and was cancelled.

[5] The Commission performed a check on the ASIC insolvency notices database which showed that on 28 March 2018, at a general meeting of members, it was resolved that Riverside Meats Abattoirs Pty Ltd would be wound up and that Bent & Cougle had been appointed liquidator. On 11 May 2018, an email from Bent & Cougle was received attaching the ASIC Form 505, confirming its appointment as liquidator for Riverside Meats Abattoirs Pty Ltd.

[6] On 14 May 2018, correspondence was sent to Mr Chapple, via post, and to his legal representative, via email, advising them that the creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Chapple to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The correspondence also noted that Mr Chapple could be heard at a Mention if he had a different view, and that he was to advise the Commission by close of business on 21 May 2018 if he wished for this to occur.

[7] On 6 August 2018, the Commission sent correspondence to Mr Chapple’s representative, via email, confirming that no response was received to the letter dated 14 May 2018. The email also noted that Mr Chapple could discontinue his matter by filing a Form F50 – Notice of Discontinuance and requested that a response be provided by close of business on 14 August 2018.

[8] On 21 August 2018, Bent & Cougle confirmed via telephone that Mr Chapple was a former employee of Riverside Meats Abattoirs Pty Ltd. I am satisfied that Riverside Meats Abattoirs Pty Ltd was Mr Chapple’s employer and that it is currently in liquidation.

[9] To date, neither Mr Chapple nor his legal representative have made contact with the Commission.

[10] Section 500(2) of 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.”

[11] 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 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 9.6A, 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.”

[12] Having regard to this provision and of 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 leave as prescribed in s.500(2) of the Corporations Act.

[13] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found 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.

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

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

COMMISSIONER

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].

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