Joel Woolley v Glenjac Pty Ltd t/a Aussie Farmers Direct

[2014] FWC 7833

[2014] FWC 7833

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Joel Woolley
v
Glenjac Pty Ltd t/a Aussie Farmers Direct
(C2014/5658)

VICE PRESIDENT HATCHER SYDNEY, 4 NOVEMBER 2014

[1] On 17 June 2014 Mr Joel Woolley lodged an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) alleging that he had been dismissed by Glenjac Pty Ltd (Glenjac) in contravention of s.352 of the FW Act. Mr Woolley also alleged that Glenjac had misrepresented an employment relationship between it and him as being an independent contracting arrangement contrary to s.357 of the Act.

[2] On 16 July 2014 the Commission conducted a conference to deal with the dispute in accordance with s.368(1) of the FW Act. On the same day, the Commission certified, pursuant to s.368(3)(a) of the FW Act, that it was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

[3] On 28 July 2014 Mr Woolley and Glenjac notified the Commission pursuant to s.369(1)(b) that they agreed to the Commission arbitrating the dispute. Each party was legally represented at this time, Mr Woolley by Turner Freeman Lawyers and Glenjac by Dignan & Hanrahan Solicitors.

[4] The Commission subsequently made directions for the conduct of the arbitration. Initially the directions required Mr Woolley to file and serve his submissions and evidence on or before 8 September 2014 and Glenjac to file and serve its submissions and evidence on or before 6 October 2014, with the hearing to occur on 13 October 2014. Mr Woolley filed his submissions and evidence within the time required by the directions, but due to an oversight on the part of his solicitors this material was not served on Glenjac until about 17 September 2014.

[5] On 8 October 2014 Glenjac (through its solicitors) made an application by email to my Associate for an adjournment of the hearing date in the following terms:

“Dear Mr Hill,

We act for the Respondent in this matter and note that the matter is listed for Hearing on Monday 13 October 2014.

An adjournment of the hearing date is sought to the 3 November 2014 for the following reasons:

1. The Applicants material was served on us on 19 November 2014 some 11 days after the date directed;

2. Accordingly, our client requires some additional time to compile their material in reply;

3. The writer is unavailable due to medical leave from 21 -27 October 2014;

In the event the 3 November is not suitable it is proposed that either 30 October or 6,7,11 or 12 November 2014 would also be preferred.

If there is any further information required please do not hesitate to contact the writer.”

[6] Although it was not noticed at the time, I note now that the subject heading of the email was “Smith Purchase of Franchise from 2120269”. Mr Woolley’s application stated that Glenjac owned an Aussie Farmers Direct franchise, and identified Mr Glen Smith as Glenjac’s contact person. Glenjac’s response to the application admitted that Glenjac operated a franchise of Aussie Farmers Direct, and was signed by Mr Glen Smith. Whether this has any significance is not clear.

[7] Mr Woolley opposed this application. However I determined to grant the application in order that Glenjac received the benefit of the four week period allowed by the original directions to prepare its evidence and submissions. The hearing date of 13 October 2014 was vacated, and a new direction was issued requiring Glenjac to file and serve its material by 17 October 2014. After confirming the availability of the parties, a new hearing date of 11 November 2014 was set.

[8] On 16 October 2014 the solicitors for Glenjac sent the following email to my chambers and to the solicitors for Mr Woolley:

“Dear Sir/Madam,

We refer to the above matter and advise we no longer hold instructions in relation to this matter as the company has been appointed a liquidator [sic].

We enclose for your information Form 505 received from Amos Insolvency in relation to the same.

We conform [sic] the Notice of Listing has been forwarded to Mr Smith for his attention.”

[9] The attached “Form 505” was an Australian Securities & Investments Commission (ASIC) standard form entitled “External Administration - Appointment of an external administrator”. It notified that Peter Andrew Amos of Unit 25, 185 Airds Road Leumeah NSW had been appointed as “Liquidator of creditors’ voluntary liquidation”. The date of appointment was stated to be 1 October 2014, and the form further stated that it was submitted by Mr Amos on 2 October 2014. In response to an inquiry from my chambers, it appears that the solicitors for the respondent received a copy of this on 10 October 2014. What the state of Glenjac’s solicitors’ instructions was when it made the application it did on 8 October 2014 is of course unknown.

[10] On 20 October 2014 my Associate sent the following email to the solicitors for Mr Woolley, attaching the correspondence from Glenjac:

“Dear Ms Walsh,

We have received the attached notice of the appointment of a liquidator in respect of the respondent company. It appears that the respondent has determined to voluntarily wind itself up under s.491 of the Corporations Act 2001. If so, this matter cannot, under s.500(2), proceed without the leave of a relevant court.

In light of the above can you please provide urgent advice as to what further steps, if any, may be taken in relation to this matter.

Regards etc.”

[11] A copy of this email was sent to Mr Amos.

[12] In response, Mr Woolley’s solicitors filed on the same day a notice that they ceased to act for Mr Woolley. Accordingly my Associate later that day sent the following email directly to Mr Woolley together with a copy of the email that had been sent to his solicitors:

“Dear Mr Woolley,

Please refer to the below correspondence we sent to your solicitor earlier today. In response we received a Form 54 advising that she no longer acts on your behalf.  

Could you please provide a response to the email below, having regard to the attached correspondence we also received from the liquidator addressed to your previous solicitors.

Regards etc.”

[13] In response to this email, Mr Woolley made telephone contact with my Associate. Not surprisingly he was unclear as to his position and was unable to give an informed response.

[14] The following email was also sent to my chambers on 20 October 2014 by Mr Amos:

“Dear all

We have been notified that the plaintiff's claim is contingent against the company 

We have spoken to the claimant today and set out our proposal to deal with the issue. 

That proposal involves that we would assist the claimant in putting forward his claim to the Department of Employment and Workplace Relations to claim under the FEG scheme

The Dept will then make a determination in relation to eligibility 

I hope this meets the approval of the parties.”

[15] Section 500(2) of the Corporations Act 2001 provides:

(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.

[16] It has been held that s.500(2) applies to a creditors’ voluntary winding up, but not to a members’ voluntary winding up. 1 The Form 505 indicates that Glenjac is subject to a creditors’ voluntary winding up. This is confirmed by a search of ASIC’s online register. Section 500(2) therefore applies.

[17] I do not consider that there can be any serious question that the consent arbitration proceeding before the Commission is a civil proceeding for the purposes of s.500(2) of the Corporations Act. The matter therefore cannot proceed absent Mr Woolley obtaining the leave of a relevant court. In those circumstances the hearing set down for 11 November 2014 is vacated.

[18] It is to be noted however that s.500(2) relevantly applies only to an action or civil proceeding against Glenjac. It would have no application to any other person who Mr Woolley might allege was involved in the contravention of the FW Act he alleges against Glenjac (see s.550 of the FW Act).

VICE PRESIDENT

 1   Catto and Others v Hampton Australia (In Liq) and Another (1998) 29 ACSR 225; Awada v Linknarf Ltd (In Liq) (2002) 55 NSWLR 745.

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