Karen Zylstra v Ideal Commercial Flooring Pty Ltd

[2019] FWC 2821

[2019] FWC 2821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Zylstra
v
Ideal Commercial Flooring Pty Ltd
(U2019/1208)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 MAY 2019

Application for an unfair dismissal remedy – voluntary liquidation – application stayed.

[1] On 6 February 2019, Mrs Karen Zylstra made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her application, Mrs Zylstra named Saco Henk Zylstra as the respondent entity with ACN 154080074 and ABN 27154080074. The same name was also specified as the contact person for the respondent entity. A review of the ACN and ABN on ABN Lookup reveals that the legal entity associated with these two numbers is Ideal Commercial Flooring Pty Ltd. I have therefore determined that I should amend the application for unfair dismissal remedy made by Mrs Zylstra so as to record “Ideal Commercial Flooring Pty Ltd” (ICF) as the respondent entity and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1

[3] On 14 February 2019, a Notice of Listing was sent to the parties scheduling a conciliation for 11 March 2019.

[4] On 15 February 2019, the Commission received an email from Mr Mike Kearle from ICF advising that it was in voluntary receivership and that all matters were to be referred to the appointed receivers, Avior Consulting.

[5] On 27 February 2019, the Commission emailed correspondence to Avior Consulting inviting it to participate in the conciliation.

[6] On 1 March 2019, Avior Consulting responded to the Commission’s correspondence clarifying that ICF was liquidation, not receivership, and that it had been appointed liquidator on 4 February 2019. Avior Consulting also attached its Notice of Appointment and confirmed that Mrs Zylstra’s employment was terminated effective 4 February 2019.

[7] A review of the ASIC insolvency notices database showed that a general meeting of members held on 4 February 2019 resolved to wind up ICF and confirmed the appointment of Avior Consulting as liquidator.

[8] In a further email received on 6 March 2019, Avior Consulting advised the Commission that it would not participate in the conciliation scheduled on 11 March 2019. The conciliation was subsequently cancelled.

[9] On 18 April 2019, I caused correspondence to be sent to Mrs Zylstra, via email and post, advising her that the creditors of ICF had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mrs Zylstra to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that her claim could not proceed unless she obtained leave of the Court.

[10] On 26 April 2019, the Commission attempted to telephone Mrs Zylstra but was unable to reach her. A voicemail message was left asking her to return the call.

[11] To date, other than filing her application, Mrs Zylstra has not made any contact with the Commission.

[12] Section 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.”

[13] Section 58AA of the Corporations Act provides the following definition in relation to the 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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.”

[14] Having regard to this provision and of the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd, 2 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.

[15] In Silalahi v CMI Industrial (Forge), 3 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

 2 (2003) 142 IR 137.

 3   [2012] FWA 7275 at [11]-[16].