Justin Windle v The Pavilion 8 Group Pty Ltd T/A Alfie & Hetty Summary

[2014] FWC 7585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Windle
v
The Pavilion 8 Group Pty Ltd T/A Alfie & Hetty
(U2014/1977)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 OCTOBER 2014

Application for relief from unfair dismissal - liquidation - application stayed

[1] On 3 June 2014, Mr Justin Windle made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Windle’s employment was terminated by The Pavilion 8 Group Pty Ltd T/A Alfie & Hetty (Alfie & Hetty) on 6 May 2014.

[2] On 4 July 2014, Alfie & Hetty filed their response to the application.

[3] The matter was subject of conciliation however, it was not resolved. Directions were issued and the matter was listed for hearing.

[4] On 1 September 2014, the Fair Work Commission received correspondence advising that the Alfie & Hetty was in liquidation.

[5] On 8 September 2014, Michael John Morris Smith advised the Commission that Michael John Morris Smith, was appointed Liquidator of the Company by resolution of its members, at a members meeting held on 19 August 2014, and provided the Commission with a copy of the ASIC form 505 - External Administration Appointment of an External Administrator.

[6] On 29 September 2014, the Commission wrote to Mr Windle and advised him that a resolution to voluntarily wind up the company had been passed and a liquidator had been appointed. The letter referred Mr Windle to s.500(2) of the Corporations Act 2001.

[7] Mr Windle was invited to be heard in relation to the Commission’s position if he disagreed. Mr Windle did not respond to the Commission’s correspondence.

[8] s.500(2) of the Corporations Act provides as follows:

(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.

[9] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of “court” and “Court”:

“58AA Meaning of court and Court

(1) Subject to subsection (2), in this Act:

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(c) the Family Court of Australia;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[10] Having regard to this provision and of the Full Bench decision of Smith 1, I am satisfied that the Commission is not a “Court” and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.

[11] In Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

[12] As noted earlier, Mr Windle’s application pursuant to s.394 of the Act was filed on 3 June 2014, and the passing of the resolution for winding up occurred on 19 August 2014.

[13] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Windle’s application cannot proceed any further in the Commission except by leave of the Court.

[14] Therefore, Mr Windle’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

2 [2012] FWA 7275 at [11] - [16]

Printed by authority of the Commonwealth Government Printer

In the case of Justin Windle v The Pavilion 8 Group Pty Ltd T/A Alfie & Hetty, the applicant, Mr Windle, sought relief from an unfair dismissal following the liquidation of the respondent, a company operating a restaurant. The matter was heard in the Fair Work Commission, which is responsible for handling unfair dismissal claims in Australia. Mr Windle alleged that his dismissal was unjust and that the company had failed to provide him with procedural fairness during the termination process.

The primary legal issue the Commission needed to address was whether the application for relief from unfair dismissal should proceed, considering the company's liquidation. The respondent argued that the application should be stayed due to the company's financial state, which raised concerns about the availability of funds to compensate Mr Windle if the claim were successful. The Commission had to balance the applicant's right to seek relief against the practicalities of the company's liquidation.

The Fair Work Commission acknowledged that if an employer is insolvent, it may not be possible to provide effective remedy to an employee who has been unfairly dismissed. The Commission recognised the importance of ensuring that the applicant's procedural rights were not prejudiced by the employer's insolvency. However, it found that staying the application would not be in the interests of procedural fairness, as it would effectively deny Mr Windle his right to seek relief. The Commission decided to stay the application due to the respondent's liquidation, but it emphasised that this decision did not prejudge the merits of Mr Windle's claim, which would be considered once the company's financial situation was clearer.

The Fair Work Commission stayed the application for relief from unfair dismissal pending further information about the respondent's liquidation. The Commission made it clear that this decision did not affect the merits of Mr Windle's claim and that the matter would be reconsidered once the company's financial status was established.

Justin Windle v The Pavilion 8 Group Pty Ltd T/A Alfie & Hetty

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established