Marlon Martin v Mideco Dust Control P/L

[2017] FWC 4006

[2017] FWC 4006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marlon Martin
v
Mideco Dust Control P/L
(U2015/4614)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 AUGUST 2017

Application for unfair dismissal remedy - respondent voluntarily placed in liquidation - s.500(2) of the Corporations Act - application not able to proceed without leave of the Court - application stayed.

[1] Mr Marlon Martin has made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Martin’s employment was terminated by Mideco Dust Control Pty Ltd (Mideco) on 12 March 2015.

[2] Conciliation was initially listed to take place however, this could not occur as Mideco was not able to participate. Subsequently, the matter was listed for Arbitration Conference/Hearing on 8-10 July 2015. On 30 April 2015, the Commission received correspondence from SV Partners advising that it had been appointed liquidators of Mideco following a meeting of members of the company on 2 April 2015. On 26 May 2015, SV Partners provided the Commission with a copy of the Form 205 - Notification of resolution - voluntary winding up it lodged with the Australian Securities & Investments Commission (ASIC) on 7 April 2015.

[3] Section 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.”

[4] Section 58AA of the Corporations Act further 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.”

[5] Having regard to this provision and of the Full Bench decision of Smith & Ors v Trollop 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.

[6] 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.

[7] Consequently, on 27 May 2015 the Commission wrote to Mr Martin and advised him that it was the Commission’s preliminary view that his application could not proceed further without leave of the Court being granted to do so. Mr Martin was given the opportunity to raise his concerns at a jurisdictional hearing if he wished to be heard on the matter. The letter invited Mr Martin to provide any submissions regarding this by no later than 3 June 2015.

[8] On 6 July 2015, Mr Martin advised he did not receive the letter dated 27 May 2015. Mr Martin was resent this correspondence and was further advised that the listing of the matter for Arbitration Conference/Hearing on 8-10 July 2015 would be vacated.

[9] On 9 August 2016, the Commission performed a search on the ASIC company database which revealed that Mideco was yet to be wound up.

[10] On 17 and 20 February 2017, the Commission attempted to contact Mr Martin to enquire whether he had made a claim under the Fair Entitlements Guarantee (FEG) scheme. Mr Martin returned the call on 21 February 2017 and advised he had made a FEG claim but was still intending to pursue the matter, asserting Mideco’s liquidation was a sham and stating he was not happy with his claim for entitlements under the FEG scheme. It was then suggested to Mr Martin that he be referred to the Workplace Advice Clinic (WAC) to obtain independent legal advice. A copy of the WAC participation form was emailed to Mr Martin and he was directed to return it to the Commission by 3 March 2017.

[11] On both 14 March 2017 and 11 April 2017, further attempts to contact Mr Martin by telephone for follow up were made. These calls were not answered. Mr Martin has not responded to attempts to contact him or indicated that he has or would be seeking leave of an appropriate Court as required by s.500(2) of the Corporations Act.

Consideration

[12] In this case, Mideco Dust Control Pty Ltd was placed into liquidation by means of a creditor’s voluntary winding up, and s.500(2) of the Corporations Act applies. The ASIC records indicate that it remains under external administration. Therefore, the Commission has no jurisdiction to proceed with this matter without leave of the relevant Court.

[13] To date, Mr Martin has not provided the Commission with any notification as to whether leave of the Court has been sought or is intended to be sought.

[14] In these circumstances, Mr Martin’s application under s.394 of the Act is stayed until leave of the court is granted. General liberty to apply is also granted.

DEPUTY PRESIDENT

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] – [16].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594981>