Mr Youbert Darwash v Perfect Labour Solution t/a Prestige Joinery

[2017] FWC 3159

[2017] FWC 3159

FAIR WORK COMMISSION

DECISION

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

Mr Youbert Darwash
v
Perfect Labour Solution t/a Prestige Joinery
(U2017/1481)

DEPUTY PRESIDENT SAMS SYDNEY, 21 JUNE 2017

Application for an unfair dismissal remedy – Company in liquidation - Commission not a Court – leave to proceed from a Court required – stay of proceedings.

[1] On 12 February 2017, Mr Youbert Darwash lodged an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), alleging his dismissal by Perfect Labour Solution (the ‘respondent’) on 23 January 2017 was ‘harsh, unjust and unreasonable’ within the meaning of s 387 of the Act.

[2] On 20 April 2017, the Fair Work Commission (the ‘Commission’) received a letter from Messrs Scott and Livingstone of PPB Advisory advising they had been appointed Liquidators of the respondent Company on 15 March 2017. They also advised that they did not consent to attend a conciliation which had been listed for the following day, 21 April 2017 before a Fair Work Commission Conciliator.

[3] On 21 April 2017, the application was referred to me for arbitration. I listed the matter for Conference on 23 May 2017. At the Conference, Mr Darwash appeared, but the liquidators did not. It was apparent that Mr Darwash’s understanding is that the Company is indeed currently under administration. A review of the Company’s status on the ASIC’s website also confirms this to be so.

[4] At this point, it is necessary to outline the relevant sections of the Corporations Act. Section 500(2) 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.’

[5] Section 471B of the Corporations Act is set out as follows:

471B Stay of proceedings and suspension of enforcement process

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation to property of the company; or

(b) enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

[6] The reference to the Court in this section is a reference to the Federal Court, the Supreme Court of a State or Territory or the Family Court. Having regard to the Full Bench decision in Smith & Ors v Trallope Silverwood & Beck Pty Ltd (2003) 142 IR 137, it is now firmly established that the Commission is not a ‘Court’ and is therefore unable to grant leave as prescribed in s 500(2) and s 471B of the Corporations Act.

[7] In Silalahi v CMI Industrial (Forge)[2012] FWA 7275, then Commissioner Jones considered the 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. Consequently, as an unfair dismissal application is a civil proceeding, I am satisfied that the applicant’s application cannot proceed any further in the Commission, except by leave of a Court.

[8] It follows that the application must be stayed until leave of the Court is granted.

DEPUTY PRESIDENT

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