Linda Carlson v Poolrite Australia Pty Ltd

[2016] FWC 658

[2016] FWC 658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Carlson
v
Poolrite Australia Pty Ltd
(U2012/9095)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 FEBRUARY 2016

Application for unfair dismissal remedy - voluntary liquidation - application stayed

[1] On 12 July 2012, Ms Linda Carlson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Carlson’s employment was terminated by Poolrite Pty Ltd on 28 June 2012.

[2] On 27 July 2012, Poolrite Australia Pty Ltd filed a response to the application.

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

[4] On 25 September 2012, Ms Carlson requested an extension of time to file her material. An extension of time was granted and amended directions were sent to the parties. Ms Carlson was directed to file her material by noon on 1 October 2012.

[5] On 2 October 2012, Ms Carlson filed her submissions.

[6] On 22 October 2012, Poolrite advised the Fair Work Commission that it had appointed a voluntary administrator from SV Partners.

[7] The matter was listed for a mention, on 16 November 2012, to determine the future programming of the matter.

[8] On 13 November 2012, Ms Carlson sought a two month adjournment of the mention on the basis that the parties were negotiating a resolution of the matter.

[9] On 28 November 2012, 11 December 2012 and 7 January 2013, voicemail messages were left on Ms Carlson’s mobile requesting an update on the matter.

[10] On 25 February 2013, the Commission was copied into correspondence from Ms Carlson to SV Partners, where Ms Carlson asked for an update on the status of the matter, as she had not received any offer of settlement.

[11] On 13 March 2013, Ms Carlson emailed the Commission and requested that the matter be listed for a hearing as she had not received a response from SV Partners to her email of 25 February 2013. On the same day, the Commission was copied into correspondence from SV Partners to Ms Carlson, where SV Partners notified Ms Carlson that they were still reviewing her claim.

[12] On 12 May 2015, the Commission emailed SV Partners requesting information as to whether there had been a resolution of creditors to wind up the company. On the same day, the Commission received a response from SV partners advising that creditors of the company resolved to wind it up on 26 March 2013.

[13] On 2 June 2015, SV Partners informed the Commission that the winding up of the company was on-going.

[14] On 13 January 2016, I caused correspondence to be sent to Ms Carlson requesting that she clarify who should be named as the respondent in the matter. On Ms Carlson’s application, she listed Poolrite Pty Ltd as the respondent. In the employer’s response, it listed Poolrite Australia Pty Ltd as the respondent. An ASIC search indicates Poolrite Pty Ltd is a registered company and Poolrite Australia Pty Ltd is under external administration. Ms Carlson was advised that if Poolrite Australia Pty Ltd is the respondent, the application cannot proceed without leave of the Court. Alternatively if the respondent is Poolrite Pty Ltd, Ms Carlson was advised that the application could proceed.

[15] On 22 January 2016, Ms Carlson wrote to the Commission advising that Poolrite Australia Pty Ltd is most likely the respondent.

[16] Further correspondence was sent on 22 January 2016, clarifying that an application for unfair dismissal remedy in this situation cannot proceed without leave of the Court. Ms Carlson was directed to make any further submissions by noon on 29 January 2016. Ms Carlson responded to this email advising that she would provide a response to the Commission the following week.

[17] As no response had been received from Ms Carlson, an attempt to telephone her on 1 February 2016 was made, as there was no answer a voicemail was left.

[18] s.500(2) of the Corporations Act 2001 (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.

[19] 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.”

[20] 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.

[21] 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.

[22] As noted earlier, Ms Carlson’s application pursuant to s.394 of the Act was filed on 12 July 2012 and the passing of the resolution for winding up occurred on 26 March 2013.

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

[24] Therefore, Ms Carlson’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]

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