Jarrod Osborn v Social Energy Australia Pty Ltd (Liquidators Appointed)

[2022] FWC 2706

[2022] FWC 2706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jarrod Osborn
v

Social Energy Australia Pty Ltd (Liquidators Appointed)

(U2022/8008)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 10 OCTOBER 2022

Application for unfair dismissal remedy – liquidation following voluntary administration – s 500(2) Corporations Act – Commission proceedings stayed – time provided for applicant to obtain Court order

1. Mr Jarrod Osborn has made an application under s 394 of the Fair Work Act 2009 (Cth) (FW Act) seeking a remedy arising from an alleged unfair dismissal. Mr Osborn’s application states that his employment was terminated by Social Energy Australia Pty Ltd (Social Energy, the company or the respondent) on 7 June 2022.

1. Mr Osborn’s application was lodged thirty-five days outside of the statutory 21-day period for making unfair dismissal claims. I issued a decision[1] on 31 August 2022 exercising my discretion to extend time to allow Mr Osborn’s application to be heard and determined.

1. At the time of issuing my decision, Social Energy was in voluntary administration.

1. In the decision, I noted that “if an extension is granted then I will hear further from the parties on case management in light of the administration”.[2]

1. On 28 September 2022, representatives of the respondent informed my Chambers that at a second meeting of creditors held on 26 September 2022, the creditors resolved to wind up the company and, as a result, the company was placed into liquidation on the same date. The respondent indicated that by virtue of s 500(2) of the Corporations Act 2001 (Cth) (Corporations Act), the application could not proceed except by leave of the “Court” as defined by s 58AA of the Corporations Act.

1. Following this notification, representatives of the respondent sent my Chambers a “Form 505 - External Administration or Controllership Appointment of an administrator or controller” verifying the appointment of the liquidators.

1. On 29 September 2022 I caused the following to be sent to the parties expressing a provisional view on the matter:

“Dear Parties

The Deputy President has been alerted to the two items of email correspondence of 28 September 2022 from the respondent’s legal representative.

The Deputy President notes that the respondent has provided a copy of a certificate dated 27 September 2022 (Form 505 under the Corporations Act) confirming the appointment of a liquidator to the respondent company on 26 September 2022.

In light of the above, the Deputy President’s provisional view is that, by force of the Corporations Act and consistent with prior decided matters in the Commission dealing with similar circumstances (for example, Parra v Live Fashion[2022] FWC 2259), proceedings before the Commission in matter U2022/8008 are stayed unless and until a court orders otherwise. Not being a court, the Commission cannot order that the stay be lifted. As a consequence, the Deputy President’s directions of 2 September 2022 would be vacated and the hearing listed for 14 October 2022 would not proceed. In those circumstances, the Commission would be minded to provide a reasonable time (two months) for the applicant to obtain a court order (if Mr Osborn chooses to do so), and in the absence of that occurring and if the application is not discontinued by Mr Osborn, the Commission would then invite views from the parties as to why the application should not be dismissed under s 587 of the Fair Work Act 2009 (Cth).

The applicant and the respondent are requested to provide a response to the Deputy President’s provisional view by close of business on 4 October 2022, after which time the Deputy President will formally advise his decision on the matter. If Mr Osborn elects to discontinue proceedings, this is to be done by written notice (either by reply email or through filing a Notice of Discontinuance (Form F50)).

In the interim, the Deputy President has placed on hold further compliance with the directions of 2 September 2022.

Kind regards”

1. The liquidators support the proposed course. Mr Osborn has not expressed a view.

1. In light of the fact that the matter is further listed on 14 October 2022, it is appropriate to determine whether those proceedings can proceed.

Consideration

1. Upon considering ss 500 and 58AA of the Corporations Act, and the cases of Mr Diego Ortiz Parra v Live Fashion Group Pty Ltd Atf The Live Fashion Unit Trust (In liquidation) Bri Ferriers Wa (Appointed Liquidator)[3] and Smith v Trollope Silverwood & Beck Pty Ltd[4] it is clear that the Commission is not a “Court”, and it cannot grant leave as required by s 500(2) of the Corporations Act.

1. It is also clearly established that an unfair dismissal application falls within the meaning of “civil proceedings” in s 500(2) of the Corporations Act.[5]

1. In this matter, Social Energy has been placed into liquidation by a resolution of creditors on 26 September 2022. Therefore, s 500(2) of the Corporations Act applies and the Commission has no jurisdiction to consider the application until leave is granted by the appropriate Court.

Disposition

1. A reasonable time should be provided to Mr Osborn to consider these developments and obtain (or commence proceedings to obtain) a Court order if he wishes to pursue his unfair dismissal application.

1. I will adjourn this matter until 9.30am (ACDT) on 12 December 2022 to allow Mr Osborn an opportunity to obtain leave of a Court pursuant to s 500 of the Corporations Act.

1. In the event that Mr Osborn is successful in obtaining leave and seeks to proceed with his application, I will issue directions for further dealing with the matter.

1. If Mr Osborn wishes to discontinue his application prior to 12 December 2022 he can do so in a manner provided for by the FW Act. These proceedings will then be concluded and the 12 December 2022 hearing vacated.

1. In the event Mr Osborn does not obtain leave within this period or the application is not otherwise discontinued, I will hear the parties on 12 December 2022 as to why the application ought not be dismissed of the Commission’s own motion pursuant to s 587 of the FW Act.

1. Liberty applies to seek variation to these arrangements.

DEPUTY PRESIDENT

[1] [2022] FWC 2292

[2] Ibid at [19]

[3] [2022] FWC 2259

[4] (2003) 142 IR 137

[5] Magdalena Silalahi v CMI Industrial (Forge)[2012] FWA 7275 at [11] – [16]; Marlon Martin v Mideco Dust Control Pty Ltd[2017] FWC 4006

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