John James v Nceleste Pty Ltd
[2023] FWC 2933
•14 NOVEMBER 2023
| [2023] FWC 2933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John James
v
Nceleste Pty Ltd
(U2021/10914)
| VICE PRESIDENT CATANZARITI | SYDNEY, 14 NOVEMBER 2023 |
Application for an unfair dismissal remedy
On 29 November 2021, Mr John James (the applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The Applicant says he was employed by Nceleste Pty Ltd (the respondent) from 26 November 2018 until he was dismissed on 20 November 2021.
The Respondent did not file an Employers Response (form F3).
On 21 January 2022, the Applicant informed the Commission that the Respondent is in administration and that the administrator is in Sydney.
On 24 January 2022, the Applicant’s representative emailed the Commission to advise the name of the admininstrator for the Respondent and a contact number.
Attempts to contact the Administrator were unsuccessful, correspondence was sent to the Applicant and his representative on 17 February 2022 providing the following information:-
Section 440D(1) of the Corporations Act 2001 (Cth) says:
(1) During the administration of a company, a proceeding in a court against the company
or in relation to any of its property cannot be begun or proceeded with, except:
(a) with the administrator’s written consent; or
(b) with the leave of the Court and in accordance with such terms (if any)
as the Court imposes.
Since the Commission is a tribunal, not a court, the Commission’s view is that your
application can proceed on the basis that the administrators would act for the respondent.
However, this would be difficult on a practical level if we are unable to contact the
Administrators.
No response was received from the Applicant or his representative, and the Commission emailed a request for a response to be provided by 2 March 2022.
The Applicant emailed the Commission on 16 March 2022 to advise he wishes to continue with his application and he provided an alternative contact name and number for the Administrator.
On 23 March 2022, the Applicant forwarded an email that he had received from the Respondent’s Administrators informing him that there is a second meeting of creditors scheduled for 23 March 2022 and on 29 March 2022, the Applicant was informed by a Circular to Creditors informing him that Cor Cordis (the Liquidators) has been appointed as Liquidators and that the Respondent company is to be wound up.
The Liquidators were emailed by the Commission to enquire as to whether they are willing to act for Respondent and a copy of the Applicant’s F2 application was provided at the request of the Liquidators.
There had been no contact from the Applicant parties or the Liquidators until the Applicant forwarded a copy of the Report to Creditors on 1 July 2022.
The Commission emailed the Applicant and his representative on 18 November 2022 requesting an update by 25 November 2022.
A telephone call was made to the Applicant on 25 November 2022 to enquire as to what he would like to do with his claim. The Applicant was informed that the Respondent is in liquidation and that there is no-one that can represent the Respondent including the Liquidators. The Applicant was advised that the Fair Entitlements Guarantee (FEG) as a possible option.
On 9 December 2022 the Commission again emailed the Applicant and his representative for an update to be provided by 16 December 2022 as the Respondent appears to be bankrupt, therefore in liquidation and was referred again to FEG as an option.
A letter was sent to the Applicant and his representative on 21 December 2022 advising that as the Respondent is in voluntary liquidation the Applicant requires leave of the Court to proceed. No response was received from the Applicant or his representative.
Further correspondence was sent to the Applicant and his representative on 7 March 2023 and again on 19 May 2023 seeking an update.
The Applicant provided a response on 22 May 2023 and advised as follows:-
“the liquidator appointed on 23 March 2022, this company appointed me to work on casual basis as supervisor until the time to sell the management to new purchasers. On Thursday 4 August 2022 my employment was terminated, and they provided Employment Separation Certificate. From that day until now nobody has contact me and I don't know where to go and who to contact to settle my claim.”
On 26 May 2023 an email was sent to the Applicant and their representative advising that permission from the Supreme Court is required in order for this matter to proceed, as the party that his claim is against is in liquidation. No response was received.
A further 2 emails was sent to the Applicant seeking updates regarding lodging with the Supreme Court, and a final notice was sent on 28 September 2023 directing him to “provide an exceptional explanation for the case to continue with the Fair Work Commission or permission from the Supreme Court by 4.00pm on 5 October 2023”. He was advised that in the absence of a reply his application would be dismissed without further notice.
To date, the Applicant has not responded to the Commission’s final notice.
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.
(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.
VICE PRESIDENT
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