Jasmin Crompton v Freightshift Pty Ltd

[2024] FWC 632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jasmin Crompton
v

Freightshift Pty Ltd

(U2023/8678)

DEPUTY PRESIDENT LAKE

BRISBANE, 11 MARCH 2024

Application for an unfair dismissal remedy – winding up – leave of court under s.500 of the Corporations Act – no reasonable prospects of success – application dismissed.

On 12 September 2023, Mrs Jasmin Crompton (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy for unfair dismissal from Freightshift Pty Ltd (the Respondent) under s.394 of the Fair Work Act 2009 (the Act).

The Respondent was in external administration at the time of the Applicant’s lodgement of the material. As a result, the matter was listed for Member Assisted Conciliation on 23 November 2023 to determine the status of the administration or liquidation of the company.

Mackay Goodwin is the Administrator for the Respondent. The Administrator on behalf of the Respondent asked for a stay of the matter as the Respondent was intending to go into liquidation shortly after the conference. The Applicant was informed during the conciliation that the matter could not proceed without leave of the Court once the Respondent passed a resolution for winding up.

The Applicant stated that she wanted to press her unfair dismissal claim. Upon this, the matter was stayed until it was confirmed by the Administrator that the company had gone into liquidation.

Mackay Goodwin had informed Chambers on 29 February 2024 that the Respondent had now gone into liquidation as it was wound up by a resolution of its creditors.

Section 500 of the Corporations Act 2001 (Cth) provides as follows:

“500 Execution and civil proceedings
(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.
(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.

(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.

Upon receiving this update, the Applicant was given until 8 March 2024 to communicate with Chambers whether she intended to seek leave from the Court to continue her matter. No correspondence was received to date.

Section 587 of the Act provides:

“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or
(b)       the application is frivolous or vexatious; or
(c)       the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under s527F that does not consist solely of an application for a stop sexual harassment order on the ground that the application:
(a)       is frivolous or vexatious; or
(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Given that the Applicant did not indicate that she was intending to seek leave of the Court to press her unfair dismissal claim, I am satisfied that Mrs Crompton’s application has no reasonable prospects of success pursuant to s.587(1)(c) of the Act.

In these circumstances, I have decided to dismiss the application. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Jasmin Crompton versus Freightshift Pty Ltd was heard by Deputy President Lake at the Fair Work Commission in Brisbane. The Applicant, Mrs Jasmin Crompton, sought a remedy for unfair dismissal from Freightshift Pty Ltd, which was in the process of winding up. The application was lodged under section 394 of the Fair Work Act 2009. The Respondent was under external administration at the time of the application, which was subsequently stayed pending the outcome of the company's liquidation process. The matter was ultimately dismissed due to the lack of reasonable prospects of success.

The key legal issues before the court involved the application of sections 500 and 587 of the Corporations Act 2001 and the Fair Work Act 2009. Specifically, the court had to determine whether the Applicant's claim could proceed against the Respondent, who was in the process of being wound up, and whether the Applicant had indicated her intention to seek leave from the court to continue her claim. The court also had to consider whether the application had reasonable prospects of success under section 587(1)(c) of the Fair Work Act.

The court found that since the Respondent had gone into liquidation, any legal action against it required the leave of the court as per section 500 of the Corporations Act. Additionally, the Applicant did not communicate with Chambers to indicate her intention to seek such leave. Given these circumstances, and considering the lack of reasonable prospects of success, the court decided to dismiss the application under section 587(1)(c) of the Fair Work Act. Consequently, the Deputy President dismissed the application for an unfair dismissal remedy.

The final order of the court was that the application for unfair dismissal was dismissed. The Applicant was not pursuing leave from the Court to continue her claim, and therefore, the application had no reasonable prospects of success. The dismissal was effective immediately upon the decision.

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