Katerina Prestigiacomo v Pharmaforce Pty Limited T/A Pharmaforce

[2014] FWC 1704

[2014] FWC 1704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katerina Prestigiacomo
v
Pharmaforce Pty Limited T/A Pharmaforce
(U2013/17120)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 MARCH 2014

Application for relief from unfair dismissal - voluntary liquidation - application stayed

[1] On 5 December 2013, Mrs Katerina Prestigiacomo made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mrs Prestigiacomo’s employment was terminated by Pharmaforce Pty Limited T/A Pharmaforce on 28 November 2013.

[2] Conciliation was listed, however could not take place. Directions were issued and the matter was listed for hearing.

[3] On 9 January 2014, Pharmaforce filed their Form F3 Employer Response form to the application.

[4] In the Form F3, Pharmaforce advised the “business is to be put into liquidation effective mid January 2014”.

[5] On 4 February 2014, Pharmaforce emailed the Fair Work Commission (the Commission) that “the company is about to be put into liquidation”.

[6] On 17 February 2014, a further email was received advising “Pharmaforce has now been put into liquidation”.

[7] On 17 February 2014, the Commission conducted an ASIC search.

[8] The ASIC search confirmed that at a general meeting of the members of the company held on 5 February 2014 it was resolved that the company would be wound up and that Mr Blair Pleash be appointed Liquidator.

[9] Section 500(2) of the Corporations Act 2001 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.

[10] Section 58AA of the Corporations Act 2001 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.”

[11] 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.

[12] 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.

[13] As noted earlier, Mrs Prestigiacomo’s application pursuant to s.394 of the Act was filed on 5 December 2013 and the passing of the resolution for winding up occurred on 5 February 2014.

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

[15] Therefore, Mrs Prestigiacomo’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

<Price code A, PR548581>

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

 2   [2012] FWA 7275 at [11] - [16]

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