Krystal Key v The Trustee for the Spencer Brands Group Trust T/A Spencil

[2018] FWC 4669

[2018] FWC 4669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystal Key
v
The Trustee for the Spencer Brands Group Trust T/A Spencil
(U2018/1675)

COMMISSIONER WILSON MELBOURNE, 13 AUGUST 2018

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

[1] On 20 February 2018, Ms Krystal Key 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] Ms Key named The Trustee for the Spencer Brands Group Trust t/a Spencil (Spencil) as the respondent entity in her Form F2 – Unfair Dismissal Application (Form F2). Ms Key further stated in her Form F2 that her employment had been terminated by Spencil on 30 January 2018, and that it took effect on the same day.

[3] On 22 February 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 15 March 2018.

[4] On 26 February 2018, the Commission received correspondence via email from Worrells Solvency and Forensic Accountants (Worrells) advising that it had been appointed liquidator of Spencil Stores No. 1 Pty Ltd on 19 February 2018. Enclosed with the correspondence was a copy of the ASIC Form 505 confirming the appointment details. The correspondence further stated that Worrells was not in a position to attend the conciliation and that Ms Key was being considered a priority unsecured creditor of the company for any potential claim for outstanding employee entitlements. The conciliation was subsequently cancelled and the matter was referred to arbitration.

[5] The Commission performed a check on the ASIC insolvency notices database which showed that on 19 February 2018 at a general meeting of the members, it was resolved that Spencil Stores No. 1 Pty Ltd would be wound up and that Worrells had been appointed liquidator.

[6] On 28 February 2018, the Commission sent a letter to Ms Key, via email and express post, advising her that the creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Ms Key to s.500(2) of the Corporations Act 2001 (Corporations Act) and stated that it was the Commission’s preliminary view that her claim could not proceed unless she obtained leave of the Court. The letter also noted that if she had a different view, the matter would be set down for a Telephone Mention and she was to advise the Commission by close of business on 7 March 2018 if she wished for this to occur.

[7] On 30 July 2018, the Commission received correspondence from Worrells confirming that the correct respondent entity in this matter is Spencil Stores No. 1 Pty Ltd (in Liquidation). I am satisfied that Spencil Stores No 1. Pty Ltd was Ms Key’s employer and that it is currently in liquidation.

[8] On 31 July 2018, the Commission sent an email to Ms Key confirming that no response was received to the letter dated 28 February 2018. The email also noted that Ms Key could discontinue her matter by filing a Form F50 – Notice of Discontinuance and requested that she provide a response by close of business on 7 August 2018.

[9] To date, Ms Key has not made contact with the Commission.

[10] 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.”

[11] 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.”

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

[13] 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.

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

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

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].