Mr Peter Duffy v Australian Convenience Foods Group Pty Ltd

[2013] FWC 7000

[2013] FWC 7000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Peter Duffy
v
Australian Convenience Foods Group Pty Ltd
(U2012/8578)

COMMISSIONER CAMBRIDGE SYDNEY, 16 SEPTEMBER 2013

Application for unfair dismissal remedy - respondent voluntarily placed in liquidation - s.500 (2) of the Corporations Act - no indication that applicant would seek leave of appropriate Court - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Brisbane on 31 May 2012 by Peter Duffy (the applicant). The respondent employer is Australian Convenience Foods Group Pty Ltd (ACN: 098539416) (the employer).

[2] This matter has a protracted and unfortunate procedural history. Following unsuccessful conciliation, the matter was listed for Arbitration Hearing/Conference on 13 September 2012 in Brisbane. There was no appearance for the employer at the Hearing held on 13 September, and advice was conveyed to Fair Work Australia, now the Fair Work Commission (the Commission), that on 28 August 2012, the employer Company had appointed Administrators pursuant to s.436A of the Corporations Act 2001 (Corporations Act).

[3] The proceedings were adjourned on 13 September 2012 to allow the applicant to seek advice about any further pursuit of his application for unfair dismissal remedy. Unfortunately the applicant did not provide the Commission with any clear or timely advice as to his intentions regarding further pursuit of the matter. Thereafter a series of email exchanges between my Associate and the applicant led to a suggestion from the applicant that he would seek to alter the named respondent in the matter to include a Company referred to as PFD Foods Pty Ltd (PFD Foods).

[4] In due course the applicant filed a Form F1 dated 25 April 2013, which appeared to represent the documentary initiation of a request for the Commission to name PFD Foods as either an additional (second) respondent or as respondent in substitution of the employer. As a consequence of various uncertainties created by the Form F1, the matter was listed for further proceedings on 13 May 2013 in Sydney.

[1] At the further proceedings held on 13 May 2013, the applicant appeared via video link from Brisbane and there was also an appearance by a person acting on behalf of the Liquidators of the Company formerly known as Australian Convenience Foods Pty Ltd. During the proceedings held on 13 May, confirmation was provided that the employer was a Company that had been placed in liquidation on 21 December 2012. The Commission drew to the attention of the Parties the potential relevance of a Decision of Senior Deputy President O’Callaghan in the matter of Kylie Bruce v Fingal Glen (Fingal Glen) 1.

[2] The applicant and the Liquidators of the employer Company were invited to consider the implications of the reasoning provided by Senior Deputy President O’Callaghan in Fingal Glen as might apply to the proceedings in this matter. The Parties were asked to provide the Commission with some documentary clarification of their respective positions once the Decision in Fingal Glen had been carefully considered.

[3] By way of communication dated 23 June 2013, the applicant advised that he had sought legal advice and had applied to “...be a creditor through Deloitte.” The applicant requested that the Commission “...leave the proceedings open till [sic] this process has been completed...” The Liquidators of the employer Company provided written communication to the Commission dated 22 July 2013, which inter alia, advised that the applicant’s formal proof of debt had been disallowed by a decision of the Liquidators made on 2 July 2013.

[4] On 31 July 2013, the applicant sent an email to the Commission wherein, inter alia, he advised that he wished to pursue the “original application”. This advice has been taken to mean that the applicant has sought to further pursue his claim for unfair dismissal remedy against the named respondent, Australian Convenience Foods Group Pty Ltd ACN 098 539 416, a Company which was placed into liquidation on 21 December 2012.

[5] The Decision of Senior Deputy President O’Callaghan in Fingal Glen provides a very helpful explanation about the implications that flow from the specific process by which a Company is placed into liquidation (winding up). Whether a Company is subject to a voluntary winding up or some other winding up arrangement arising from action taken by a creditor or creditors can have a significant impact on whether the Corporations Act allows the Commission to proceed to deal with an application for unfair dismissal remedy without leave of an appropriate Court.

[6] Specifically, if the circumstances of the Company in liquidation have involved a voluntary winding up then s.500 of the Corporations Act would operate. Section 500 of the Corporations Act is in the following terms:

“500  Execution and civil proceedings

(1)  Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

             (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.

             (3)  The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.”

[7] Specifically, subsection 500 (2) would mean that leave of a Court would need to be obtained in order to allow for the Commission to conduct or take any further steps in the conduct of unfair dismissal proceedings. See in particular paragraph [16] of the Decision in Fingal Glen and also the Decisions of Commissioners McKenna and Jones respectively, in Julie Frances Lawler v ABC Developmental Learning Centres 2, and Magdalena Silalahi v CMI Industrial (Forge)3.

[8] Consequently, by way of a communication from my Associate dated 12 August 2013, the applicant was asked to confirm; (a) whether the process by which Australian Convenience Foods Group Pty Ltd ACN 098 539 416 was placed in liquidation did or did not involve the voluntary winding up of that Company, and (b) whether any action has been or will be taken in accordance with subsection 500 (2) of the Corporations Act, to have leave of a Court granted so as to permit the Commission to conduct a Hearing of the applicant’s claim for unfair dismissal remedy.

[9] On 10 September 2013, the applicant provided a response to the communication from my Associate dated 12 August 2013. The applicant confirmed that the respondent employer Company has been placed into Liquidation by means of a voluntary winding up. Therefore s. 500 of the Corporations Act is applicable to the circumstances in this matter.

[10] The applicant has given no indication whatsoever that he has or would be seeking leave of an appropriate Court as required by subsection 500(2) of the Corporations Act.

[11] In such circumstances, the provisions of subsection 500(2) of the Corporations Act oblige me to dismiss the application. Accordingly, an Order [PR541822] to give effect to this consequence will be issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Mr Peter Duffy, appearing unrepresented.

Ms Laura Lombe, appearing for the Liquidators; Deloitte Touche Tohmatsu.

Hearing details:

2012.

Brisbane:

September, 13.

2013.

Sydney and Brisbane by Video

May, 13.

 1   Kylie Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera [2013] FWC 2704.

 2   Julie Frances Lawler v ABC Developmental Learning Centres Pty Ltd (Receivers and Mangers Appointed) (Administrators Appointed) [2010] FWA 7679.

 3   Magdalena Silalahi v CMI Industrial (Forge) [2012] FWA 7275.

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<Price code C, PR541815>