Mark Kocks v Hinterland Construction Pty Ltd T/A Unique Country Homes & Unique City Homes

[2018] FWC 4307

[2018] FWC 4307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Kocks
v
Hinterland Construction Pty Ltd T/A Unique Country Homes & Unique City Homes
(U2018/1313)

COMMISSIONER BISSETT MELBOURNE, 24 JULY 2018

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

[1] On 10 February 2018, Mr Mark Kocks made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Kocks was notified of his termination by Hinterland Construction Pty Ltd t/a Unique Country Homes & Unique City Homes (Hinterland) on 23 January 2018.

[2] On 20 February 2018, Hinterland filed its response to the application.

[3] The matter was listed for conciliation on 21 March 2018. However, prior to the commencement of the conciliation, Hinterland emailed the Commission advising that it was in liquidation and as a result, its offices would not be attended. The conciliation therefore did not proceed.

[4] The Commission performed a check on the ASIC insolvency notices database which confirmed that on 20 March 2018 at a general meeting of the company’s members, a resolution was passed for the company to be wound up voluntarily.

[5] On 4 April 2018, the Commission wrote to Mr Kocks and advised him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Kocks to s.500(2) of the Corporations Act 2001 (Corporations Act) and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. Mr Kocks was advised that if he had a different view, the matter would be set down for a Mention and he was to advise the Commission by close of business on 13 April 2018 if he wished for this to occur. Mr Kocks did not respond to the Commission’s correspondence.

[6] On 11 July 2018, the Commission sent an email to Mr Kocks confirming that no response was received to the correspondence of 4 April 2018. The email also noted that Mr Kocks could discontinue his matter by filing a Form F50 – Notice of Discontinuance and requested a response from him by close of business on 18 July 2018.

[7] On 18 July 2018, Mr Kocks telephoned the Commission and advised that he wished to continue with his matter.

[8] 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.”

[9] 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.”

[10] 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.

[11] 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.

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

[13] Therefore, Mr Kocks’ 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].