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

[2022] FWC 3261

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, 12 DECEMBER 2022

Application for unfair dismissal remedy – respondent in liquidation – application dismissed

Having earlier granted an extension of time for the late lodgement of this application by Mr Jarrod Osborn for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (FW Act)[1], on 10 October 2022, I issued a further decision on jurisdiction.[2]

At the time of that further decision, the respondent Social Energy Australia Pty Ltd (Social Energy) had been placed into liquidation by a resolution of creditors on 26 September 2022. I decided that s 500(2) of the of the Corporations Act 2001 (Cth) (Corporations Act) applies to this proceeding and that the Commission has no jurisdiction to further consider the application unless and until leave is granted by an appropriate Court.

In the decision I stated:

“[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.”

At a hearing on 12 December 2022, both Mr Osborn and the liquidators advised that leave of the Court has not been obtained to enable this application to proceed. Mr Osborn has not made an application to the Court to this effect, nor discontinued this proceeding.

In the circumstances, I am satisfied that Mr Osborn’s application has no reasonable prospects of success. The respondent has, since the application was first made, been placed into liquidation and Mr Osborn’s unfair dismissal application is, by operation of the Corporations Act, unable to proceed before the Commission. A reasonable time has been provided for Mr Osborn to seek an order to contrary effect.

It is not in the interests of the efficient conduct of Commission proceedings for applications to remain live before the Commission where those applications, on the given facts, have no reasonable prospects of success. Therefore, I exercise power under s 587(1)(c) of the FW Act to dismiss Mr Osborn’s application.

An order giving effect to this decision will be issued in conjunction with its publication.[3]

DEPUTY PRESIDENT

Appearances:

Mr J Osborn, on his own behalf

Ms C Cavallaro, with permission, on behalf of Social Energy Australia Pty Ltd (Liquidators Appointed)

Hearing details:

2022
Adelaide (by video)
12 December 2022

[1] Decision 31 August 2022 [2022] FWC 2292

[2] [2022] FWC 2706

[3] PR748810

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jarrod Osborn brought an unfair dismissal claim against Social Energy Australia Pty Ltd, which had been placed in liquidation by a creditors' resolution on 26 September 2022. The matter was heard before Deputy President Anderson of the Fair Work Commission, who had earlier granted an extension for the late lodgement of Osborn's application. The legal issues in this case centred around whether the Commission had jurisdiction to hear Osborn's application given the respondent's liquidation and the applicability of s 500(2) of the Corporations Act 2001 (Cth).

Deputy President Anderson noted that at the time of the earlier decision, Social Energy had been placed in liquidation, and the Commission determined that s 500(2) of the Corporations Act applied. This meant the Commission lacked jurisdiction to consider the application unless leave was granted by an appropriate Court. The decision provided Osborn a reasonable time to consider the developments and seek Court leave if he wished to pursue the unfair dismissal application. The matter was adjourned until 12 December 2022 to allow Osborn to obtain leave and, if successful, proceed with his application. If Osborn did not obtain leave, the application would be dismissed on the Commission’s own motion. At the hearing on 12 December 2022, it was confirmed that Osborn had not obtained leave or discontinued the proceeding, leading Deputy President Anderson to conclude that the application had no reasonable prospects of success.

Given these circumstances, Deputy President Anderson exercised power under s 587(1)(c) of the Fair Work Act 2009 (Cth) to dismiss Osborn’s application, finding it was not in the interests of the efficient conduct of Commission proceedings to keep applications that had no reasonable prospects of success. The Deputy President's decision was based on the lack of Court leave and the respondent's liquidation, which rendered the application unable to proceed before the Commission. An order giving effect to this decision was to be issued in conjunction with its publication.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established