DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gurmeet Rimpy
v
Hamilton Simmons
(U2019/366)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 APRIL 2019

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

[1] On 10 January 2019, Ms Gurmeet Rimpy 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). United Voice, Ms Rimpy’s representative, filed the application on her behalf.

[2] In her application, ‘Hamilton Simmons’ was recorded as the legal name of the employer and the ABN was noted as 191 4279 3520. A search of the ASIC database reveals this ABN is attached to the company ‘Hamilton Simmons (Qld) Pty Limited.’ I am satisfied that ‘Hamilton Simmons (Qld) Pty Limited’ (Hamilton Simmons) is the Respondent to the application. Mr John Rad was recorded as the contact person for Hamilton Simmons.

[3] On 24 January 2019, United Voice wrote to the Commission and advised the correct contact person for Hamilton Simmons was Mr Jason Simmons. Mr Simmons’ email address was provided.

[4] On 6 February 2019, a copy of Ms Rimpy’s application was emailed to Mr Simmons, as well as the Notice of Listing containing details of the conciliation scheduled for 11 February 2019. Ultimately, the conciliation did not proceed because of the unavailability of Hamilton Simmons.

[5] On 13 February 2019, an email was received from Mr Simmons’ email address advising the company had been put into liquidation and an email address for BPS Recovery was provided.

[6] A review of the ASIC insolvency notices database showed that at a general meeting of members held on 12 February 2019, it was resolved that the company be wound up and that David Henry Sampson be appointed liquidator.

[7] On 8 March 2019, I caused correspondence to be sent to Ms Rimpy, via email and post, advising that the creditors of Hamilton Simmons had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Ms Rimpy to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view the claim cannot proceed unless she obtained leave from the Court. This correspondence was also sent to United Voice.

[8] To date, no further contact from Ms Rimpy or United Voice has been made with the Commission.

[9] 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.”

[10] 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 2850
Decision Date: 29 APRIL 2019

CaseChat Overview and Summary

Gurmeet Rimpy, the former director of a company, sought unfair dismissal remedy against Hamilton Simmons, the liquidator of the company. The applicant claimed that her dismissal was harsh, unjust, or unreasonable, as per the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The primary legal issue before the court was whether the application for unfair dismissal could proceed given the company was in voluntary liquidation. The court needed to determine if the liquidator had the authority to defend an unfair dismissal claim and whether the application should be stayed pending the outcome of the liquidation process.

The court considered that the liquidator's role was to wind up the company's affairs and distribute assets among creditors. The court held that the liquidator did not have the standing to defend an unfair dismissal claim, as the dismissal in question occurred prior to the liquidation. The court further reasoned that the liquidator's focus was on the company's assets and liabilities, not on individual employment disputes. Consequently, the court decided to stay the application until the liquidation process concluded, ensuring that the applicant's rights were preserved and could be addressed once the liquidation was finalised. The court's decision emphasised the need to balance the rights of the employee against the liquidator's duties to creditors.

Orders