Mark Bird v 4d Joinery Pty Ltd T/A 4d Joinery Pty Ltd

[2020] FWC 594

[2020] FWC 594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Bird
v
4D Joinery Pty Ltd T/A 4D Joinery Pty Ltd
(U2019/12486)

COMMISSIONER BISSETT MELBOURNE, 5 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 8 November 2019 Mr Mark Bird made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Bird stated that he was notified of his termination by 4D Joinery Pty Ltd t/a 4D Joinery Pty Ltd (Respondent) on 21 October 2019.

[2] The matter was listed for a conciliation conference on 11 December 2019.

[3] On 2 December 2019 Mr Bird emailed correspondence to the Fair Work Commission (Commission) advising that he had been informed that the Respondent had entered into voluntary administration. Mr Bird asked what will happen with his unfair dismissal application.

[4] Following receipt of this correspondence, the Commission telephoned Mr Bird to advise that his unfair dismissal application would not immediately be dismissed and that he may be able to liaise with the Administrators of the Respondent to obtain his entitlements. The Commission also advised Mr Bird that he may wish to seek advice from the Fair Work Ombudsman or a community legal centre.

[5] On 4 December 2019 the Commission telephoned the Respondent on the contact details provided on the Form F2 Unfair dismissal application. A voicemail message was left requesting an urgent return call to discuss the unfair dismissal application and whether the Respondent had entered into administration.

[6] On 6 December 2019 the Commission telephoned the Respondent and left a voicemail message requesting they file a Form F3 Employer response and provide contact details for the conciliation conference.

[7] On 7 December 2019 Mr Bird emailed correspondence to Commission again advising that the Respondent had entered into voluntary administration. Mr Bird asked what the next step in the Commission process was and how he could recover his entitlements.

[8] On 9 December 2019 Mr Bird emailed correspondence to the Commission advising that he had been asked to advise the Commission to contact the Administrator, BDO. The correspondence provided contact details for Ms Antoinette Fielding from the Administrator.

[9] Later that day the Commission emailed correspondence to Mr Bird providing information about the Fair Entitlements Guarantee (FEG). That correspondence provided hyperlinks to information on eligibility and how to apply for FEG assistance. The Commission also emailed correspondence confirming the date and time of the conciliation conference listed for 11 December 2019.

[10] On 10 December 2019 the Commission telephoned the Administrator on the contact number provided by Mr Bird. The Administrator confirmed that the Respondent had entered into administration and they were appointed as the Administrator. The Administrator advised they would confirm this advice by email and would request documents relating to the unfair dismissal application.

[11] On 11 December 2019 the conciliation conference took place. The matter did not settle. At the conciliation the Commission was advised that the Respondent had entered into voluntary administration and the contact person for the Administrator was Mr Chris Demeyere from BDO with an alternate contact of Ms Fielding.

[12] As the matter did not settle at the conciliation, the matter was referred to be listed for Conference/Hearing.

[13] On 24 December 2019 the Commission emailed correspondence the parties. That correspondence advised that the Commission was in the process of scheduling the matter for a Conference/Hearing and noted previous advice that the Respondent had entered into voluntary administration which is being managed by BDO. The Commission requested that the parties confirm this information in writing.

[14] Later that day the Administrator emailed correspondence to the Commission advising BDO were appointed Administrators of the Respondent and were assessing whether there would be sufficient funds to meet the payment of outstanding employee entitlements from company assets. The correspondence further advised that a meeting of creditors would be held in mid-January 2020 where creditors would decide the future of the Respondent and Mr Bird would receive notification of the meeting in their next report to creditors.

[15] On 2 January 2020 the Commission emailed correspondence to the Administrator. Mr Bird was copied into that email correspondence. That correspondence advised that:

•  Section 440D(1) of the Corporations Act 2001 (Corporations Act) states that during the administration of a company, a proceeding in a court cannot proceed.

•  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.

…

•  In the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd i it was held that the Australian Industrial Relations Commission was not a “Court” for the purposes of s.440D of the Corporations Act and this reasoning applied equally to unfair dismissal applications commenced under the FW Act.

•  Therefore, there is no bar to the application of Mr Bird proceeding at that time and the matter would be listed for Conference/Hearing in due course.

[16] Later that day a Notice of Listing was sent to the parties advising that the matter was listed for Conference/Hearing on 27 – 28 February 2020.

[17] On 20 January 2020 Mr Bird telephoned the Commission and advised that he had been informed by BDO that the Respondent had entered into liquidation. Mr Bird asked the Commission whether this changed the status of the scheduled Conference/Hearing. The Commission requested that Mr Bird confirm this information in writing and that it would be passed on to the Unfair Dismissal National Practice Leader for determination.

[18] On 22 January 2020 Mr Bird forwarded correspondence from BDO to the Commission. That correspondence advised that a second meeting of creditors was held on 17 January 2020 and at that meeting the creditors resolved that the company should be wound up. The correspondence further advised that as a result the Administrators became the Liquidators.

[19] The Commission performed a check on the Australian Securities and Investments Commission insolvency notices database, which showed that on 5 December 2019 the Respondent went into administration and on 17 January 2020 the creditors passed a special resolution for the company to be wound up voluntarily and the Administrator became the Liquidator pursuant to s.446A of the Corporations Act.

[20] On 24 January 2020 the Commission emailed correspondence to Mr Bird advising that a resolution had been passed to voluntarily wind up the Respondent company and that a Liquidator had been appointed. The letter referred Mr Bird to s.500(2) of the Corporations Act and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The letter noted that if Mr Bird no longer wished to pursue his unfair dismissal application he should file a Form F50 Notice of Discontinuance within seven days, otherwise the application would be referred to a Member of the Commission for consideration.

[21] To date Mr Bird has not provided a response to this correspondence nor filed a Form F50 Notice of Discontinuance.

[22] 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.”

[23] Section 58AA of the Corporations Act provides the definition in relation to the meaning of “court” and “Court”.

[24] 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.

[25] 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 FW Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

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

[27] Therefore, Mr Bird’s application under s.394 of the FW 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].