Jane Horrigan v Divine Angel Pty Ltd ATF the Trustee for the Mansour Family Trust

[2020] FWC 4616

[2020] FWC 4616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Horrigan
v
Divine Angel Pty Ltd ATF The Trustee for the Mansour Family Trust
(U2020/9156)

COMMISSIONER BISSETT MELBOURNE, 31 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 3 July 2020 Ms Jane Horrigan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Ms Horrigan stated that he was notified of her termination by Divine Angel Pty Ltd ATF The Trustee for the Mansour Family Trust on 22 June 2020.

[2] The matter was listed for a conciliation conference on 28 July 2020. The conciliation was cancelled due to conciliator unavailability and the conciliation conference was relisted for 6 August 2020. The conciliation once again could not take place and the parties were contacted for further availability.

[3] On 11 August 2020, the Commission was advised by BPS Reconstruction and Recovery by email that Simon Nelson was the liquidator for the Respondent company, which was in liquidation. The email requested that Ms Horrigan’s unfair dismissal application be dismissed.

[4] On 14 August 2020 the Applicant’s representative provided the Form 505 Notification of Appointment from the Australian Securities & Investments Commission (ASIC

[5] On 24 August 2020 the Commission emailed correspondence to Ms Horrigan and her representative advising that a resolution had been passed to voluntarily wind up the Respondent company and that a Liquidator had been appointed. The letter referred Ms Horrigan to s.500(2) of the Corporations Act and stated it was the Commission’s preliminary view that her claim could not proceed unless she obtained leave of the Court. The letter noted that if Ms Horrigan no longer wished to pursue her unfair dismissal application she should file a Form F50 Notice of Discontinuance.

[6] There was no response from Ms Horrigan or her representative.

[7] 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.”

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

[9] 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.

[10] 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.

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

[1] Therefore, Ms Horrigan’s application under s.394 of the FW Act is stayed until leave of the Court is granted.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722307>

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].