Malimage Perera and Dilrukshi Rose v Blend and Pack Pty Ltd

[2023] FWC 3001

[2023] FWC 3001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Malimage Perera and Dilrukshi Rose
v

Blend and Pack Pty Ltd

(U2023/8626 and U2023/8627)

DEPUTY PRESIDENT COLMAN MELBOURNE, 16 NOVEMBER 2023

Unfair dismissal application – respondent in liquidation – s 500(2) of the Corporations Act

1. This decision concerns two related applications made by Ms Malimage Perera and Ms Dilrukshi Rose (applicants) under s 394 of the Fair Work Act 2009 (FW Act). The applicants contend that they were unfairly dismissed from their employment with Blend and Pack Pty Ltd (respondent). On 24 October 2023, the Commission was advised that the respondent was in voluntary administration. It did not contest the applications.

1. Ms Perera was employed by the respondent as an assistant quality controller. Her employment began on 24 October 2012. Ms Rose was employed as a process worker and commenced her employment on 16 November 2011. On 18 July 2023, the applicants received a letter from the respondent’s head of human resources terminating their employment on five weeks’ notice. It did not refer to any reason for dismissal. The applicants believed that they had been dismissed for reason of redundancy. On termination, they were paid out their accrued annual leave and long service leave, but they did not receive any redundancy payments. The applicants contended that their dismissals were unfair because they were not given a reason for termination. They said that the way in which they were dismissed after lengthy periods of service was unfair, and that the unfairness was exacerbated by the fact that they received no redundancy pay.

1. The respondent did not participate in the proceedings. On 24 October 2023, the administrators advised the Commission that they did not propose to defend the unfair dismissal applications, and confirmed that the company was not in liquidation. However, at the hearing on 15 November 2023, the applicants produced a letter from the administrators dated 8 November 2023, stating that a resolution of creditors had determined to place the company into voluntary liquidation. I advised the applicants that in light of this letter, they could not continue their unfair dismissal claims without a court order allowing them to do so. In this regard, s 500(2) of the Corporations Act 2001 provides that, after the passing of a 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.’ It is clear that the applicants’ unfair dismissal claims are actions or civil proceedings for the purposes of s 500(2). The Commission is not a court and cannot grant leave for the proceedings to continue. I asked the applicants whether they intended to make an application to a court for an order allowing them to proceed with their unfair dismissal claims. They said that they did not intend to do so. I advised the applicants that in these circumstances I proposed to dismiss their applications because they could not continue without a court order, and there was no prospect of an order being granted if the applicants had no intention of seeking one. In my view the applications have no reasonable prospects of success and it is appropriate to dismiss them under s 587(1)(c) of the FW Act.

1. Had the company not been placed into liquidation and the applications had proceeded, I would have concluded that the applicants’ dismissal by the respondent was unfair. Based on the material before the Commission, there is no indication that there was a valid reason for dismissal related to the applicants’ capacity or conduct within the meaning of s 387(a). If it was the case that the reason for the applicants’ dismissal was redundancy (a reason not related to capacity or conduct and therefore to be considered under s 387(h)), then the respondents ought to have advised the applicants of this and consulted with them in relation to the redundancy. The applicants were treated very poorly by the respondents after many years of service.

1. Finally, in relation to the question of redundancy entitlements, the applicants are aware that, given the respondent is in liquidation, they may now lodge a claim under the Fair Entitlements Guarantee scheme.

1. The applications are dismissed.

DEPUTY PRESIDENT

Hearing details:

2023
Melbourne
15 November

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