Mr Thomas Cahill v EPM Central Coast Pty Ltd T/A Express Print and Mail

[2020] FWC 2192

[2020] FWC 2192

FAIR WORK COMMISSION

DECISION

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

Mr Thomas Cahill
v
EPM Central Coast Pty Ltd T/A Express Print and Mail
(U2019/9731)

DEPUTY PRESIDENT ASBURY BRISBANE, 28 APRIL 2020

Application for an unfair dismissal remedy – voluntary liquidation - finding that application has no reasonable prospect of success – Application dismissed pursuant to s.587 of the Act.

[1] Mr Thomas Cahill (the Applicant) applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his alleged dismissal by EPM Central Coast Pty Ltd T/A Express Print and Mail (the Respondent). The Respondent objects to the application on the basis of the assertion that the Applicant has not completed the minimum employment period as required by s. 382(a), s. 383(a) and s. 384 of the Act.

[2] In his Form F2 application, the Applicant states that he was employed by the Respondent from 10 May 2018 until the termination of his employment on 19 August 2019. While there is no dispute regarding the relevant termination date, the Respondent submits in its Form F3 that the Applicant’s employment commenced on 29 July 2019. The Respondent asserts that the Applicant was previously employed by Chameleon Group Australia Pty Ltd, which was placed into liquidation on 25 July 2019, and his employment was terminated on this date. On 29 July 2019, the Applicant commenced employment with the Respondent. The Respondent asserts that there was no contractual obligation to continue the employment of staff previously employed by Chameleon Group Australia Pty Ltd, and that this is evidenced in the employment contract signed by Mr Cahill dated 29 July 2019.

[3] The Applicant sought a hearing of the application after an in-principle agreement said to have been reached between the parties was not concluded.

[4] The matter was listed for a Mention/Directions Conference by telephone on 20 December 2019. On 17 December 2019, Mr Chadwick of the Respondent corresponded with my Chambers advising that the Respondent was under administration and would likely be placed into liquidation and querying whether it was appropriate for him to be a party to the unfair dismissal application.

[5] My Associate corresponded with Mr Chadwick advising that the Company being placed into voluntary administration would not prevent an application for unfair dismissal proceeding to hearing on the basis that the stay in s. 440D of the Corporations Act 2001 does not apply in such circumstances. Mr Chadwick was further advised that the Mention/Directions conference would proceed and that attendance on behalf of the Respondent was expected.

[6] On 19 December 2019 Mr Chadwick again corresponded with the Commission appending the details of the appointment of administrators and suggesting that the Commission make contact with them to discuss the matter. Mr Chadwick further stated that his belief was that he had no standing to be involved in the matter and was not available to attend the Mention/Directions Conference in any event. Mr Chadwick also advised that if anything further was required of him he would be back at work from 6 January 2020.

[7] On 19 December 2019 my Associate responded to Mr Chadwick stating:

•  Given Mr Chadwick’s position with respect to attendance at the Mention/Directions Conference the listing would be vacated and instead Directions would be issued requiring the Respondent to file and serve material in relation to its jurisdictional objection;

•  Notwithstanding the appointment of administrators I saw no reason why the Respondent could not file material in relation to its jurisdictional objection; and

•  Requesting contact details for the administrators.

[8] Also on 20 December 2019 I issued Directions for the hearing and determination of the Respondent’s jurisdictional objection. Those Directions required the Respondent to file material in support of its jurisdictional objection by Friday 10 January 2020.

[9] On 7 January 2020 correspondence was received from Mr Chadwick attaching a circular said to have been issued to creditors of the Respondent on 19 December 2019. Correspondence was also received on that date from Mr Chadwick stating that the Company is now in liquidation. The circular to creditors states that at a meeting of the Company’s creditors held on 19 December 2019 pursuant to s. 439A of the Corporations Act 2001 creditors resolved that the Company be wound up and appointed liquidators and that this type of liquidation is known as a creditors voluntary liquidation.

[10] On 16 January 2020, I issued a Statement to parties which included the following information:

“[10] Section 500(2) of the Corporations Act 2001 provides:

(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.”

[11] It has been held that s.500(2) applies to a creditors’ voluntary winding up, but not to a members’ voluntary winding up.1 I note that the circular to creditors indicates that EPM Central Coast Pty Ltd is subject to a creditors’ voluntary winding up. This is not confirmed by a search of ASIC’s online register, however this may be simply because the register has not been updated. I consider it likely that the Company is under creditors voluntary liquidation and that s. 500(2) of the Corporations Act therefore applies.

[12] I also consider that an unfair dismissal proceeding before the Commission is a civil proceeding for the purposes of s.500(2) of the Corporations Act. The matter therefore cannot proceed absent Mr Cahill obtaining the leave of a relevant court. In those circumstances the Directions issued on 19 December 2019 are vacated.

[13] I intend to stay Mr Cahill’s unfair dismissal application pending Mr Cahill deciding whether he intends to seek leave of the Court to pursue his unfair dismissal application. In doing so I note that there will be significant practical difficulties for Mr Cahill if he does pursue his application. The liquidator is proceeding to wind up the Company. There is every likelihood that when this is finalised there will be no funds to cover any award of compensation Mr Cahill may obtain and any such award would simply be another liability for consideration by the liquidator.

[14] In those circumstances, Mr Cahill may decide that he will not proceed with his application. Accordingly, I provide Mr Cahill with a 28 day period in which to decide to pursue his unfair dismissal application. By 4.00 pm on Friday 14 February 2020 Mr Cahill is to inform the Commission of his intention to pursue his unfair dismissal application and the steps he has taken to seek leave of the Court to do so.

[15] If Mr Cahill does not provide such information I will dismiss his application without further notice.” 1

[11] On 17 January 2020 the Applicant sent correspondence seeking advice in relation to obtaining leave of the court and information about the costs associated with that process. My Associate advised the Applicant that the Commission was unable to give him legal advice, and that he should seek legal advice or make enquiries to the Court.

[12] No material was subsequently received from the Applicant or any other correspondence.

[13] I consider it appropriate to dismiss the application pursuant to s.587 of the Fair Work Act 2009. I do so on the basis that that I consider the application has no reasonable prospects of success on the basis that the Applicant has failed to advise if he has sought leave of the Court to pursue his unfair dismissal application. The Applicant has been afforded an opportunity obtain leave of a relevant court, and has not availed himself of the opportunity.

[14] As noted above in the Statement issued to parties on 16 January 2020, I consider that an unfair dismissal proceeding before the Commission is a civil proceeding for the purposes of s. 500(2) of the Corporations Act. As the Applicant has not obtained the leave of the relevant court, the matter cannot proceed.

[15] Accordingly, I dismiss the Applicant’s unfair dismissal pursuant to s. 587 of the Act. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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 1   Statement – 16 January 2020