Mrs Anastasia Nasnikova v Gym & Tonic Healthclubs Pty Ltd as Trustee for the Snap Fitness Waterloo Unit Trust t/a the Henley Group

[2017] FWC 2080

[2017] FWC 2080

FAIR WORK COMMISSION

DECISION

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

Mrs Anastasia Nasnikova
v
Gym & Tonic Healthclubs Pty Ltd As Trustee for the Snap Fitness Waterloo Unit Trust t/a The Henley Group
(U2017/1063)

DEPUTY PRESIDENT SAMS SYDNEY, 19 APRIL 2017

Application for an unfair dismissal - application stayed pursuant to s 500(2) of the Corporations Act 2001.

[1] On 3 February 2017, Ms Anastasia Nasnikova lodged an application, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), alleging her dismissal by the Gym & Tonic Healthclubs Pty Ltd As Trustee for the Snap Fitness Waterloo Unit Trust t/a The Henley Group (the ‘respondent’) on 18 January 2017 was ‘harsh, unreasonable and unjust’ within the meaning of s 387 of the Act.

[2] On 6 March 2017, the Fair Work Commission (the ‘Commission’) received an email from Mr Rajiv Ghedia, of SV Partners Insolvency (NSW) Pty Ltd who advised that Messrs S Banerjee and I Purchas (also of SV Partners Insolvency (NSW) Pty Ltd) had been appointed joint and several liquidators of the respondent. He provided a copy of a Court order from the Supreme Court of NSW dated 6 February 2017 ordering that Gym & Tonic Health Clubs Pty Limited ACN 135 011 853 be wound up in insolvency and confirming appointment of said liquidators. In his email, Mr Ghedia advised that the liquidators did not wish to participate in a conciliation which had been listed for 9 March 2017 before a Commission Conciliator.

[3] On 8 March 2017, the matter was allocated to my Chambers for arbitration. The following day, I issued directions for the filing of evidence and submissions and listed the matter for conference (28 March 2017) and hearing (5 May 2017). Shortly after issuing the directions, my Chambers received an email from Mr Ghedia advising that the liquidators did not wish to participate in the proceedings.

[4] On 8 March 2017, my Chambers also received an email from Ms K Macdonald, who had been listed as the respondent’s contact person, and who had signed the applicant’s termination letter of 18 January 2017 on behalf of the Henley Group. In her email, Ms Macdonald advised she no longer acted for the respondent. She said the correct contact person for the respondent is Mr Jie Huang, Director and referred Chambers to the liquidators to obtain his contact details (Mr Ghedia provided Mr Huang’s email address on 15 March 2017).

[5] On 16 March 2017, my Chambers emailed Mr Huang the directions and notice of listing. However, to date, no response has been received, nor did Mr Huang attend the conference on 28 March 2017. On 28 March 2017, a conference was convened at the Commission, which the applicant and her legal representative, Mr J Perez attended.

[6] During the conference, Mr Perez advised that his understanding was that the respondent is currently in liquidation and that if the applicant seeks to press the application, she would need to seek leave of a Court of competent jurisdiction and that this had been explained to the applicant. Mr Perez’ understanding is undoubtedly correct.

[7] 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.’

[8] 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 Trallop Silverwood & Beck Pty Ltd (2003) 142 IR 137, 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.

[9] 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 the 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 the Court.

[10] It follows that the application must be stayed until leave of the Court is granted. However, I note that Mr Perez sought a period of two months for him to investigate the financial and other circumstances of the respondent. Although I have stayed this application, I direct Mr Perez to advise my Chambers by no later than 31 May 2017 as to whether the stay of this application should continue, the application is discontinued or should otherwise be considered by the Commission (subject to any constraints on the Commission’s powers).

DEPUTY PRESIDENT

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