Mrs Karen Debra Stocker v A.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre

[2011] FWA 5079

[2011] FWA 5079

FAIR WORK AUSTRALIA

DECISION AND

REASONS FOR DECISION

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

Mrs Karen Debra Stocker
v
A.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre
(U2010/9165)

COMMISSIONER CLOGHAN PERTH, 2 AUGUST 2011

Unfair dismissal remedy.

[1] On 16 May 2011, I issued an Interim Decision [2011] FWA 2326 (PR508475) concerning an application by Mrs Karen Stocker (“the Applicant”) alleging that she had been unfairly dismissed from her employment with A.B.C. Developmental Learning Centre Pty Ltd trading as A.B.C. Learning Centre (“the Employer”).

[2] The relevant parts of the 16 May 2011 Interim Decision are contained in paragraphs [57] and [58] as follows:

“[57] For the above reasons, I find that, in accordance with s.500(2) of the Corporations Act, Ms Stocker is required to seek leave of the Court as defined in s.58AA of the Corporations Act before the Tribunal can continue with these proceedings.

“[58] In conclusion, the Tribunal will adjourn these proceedings until 22 June 2011 to enable Ms Stocker to seek leave of the Court. Should Ms Stocker not receive or establish that she is pursuing leave of the Court by 22 June 2011, the application will be dismissed.”

[3] On 21 June 2011, Mrs Stocker’s representative sought from the Tribunal that the deadline of 22 June 2011 referred to in paragraph [2] above be extended.

[4] Following comments from the Employer’s representative received on 23 June 2011, I extended, on 24 June 2011, the deadline to 29 July 2011. In extending the deadline to 29 July 2011, I made the following comments to ensure the Applicant had a clear understanding of the conditions upon which the extension of time had been granted. I set out those conditions again:

“Having received entreaties from both parties, I have determined that the deadline will be extended to 4:00pm on 29 July 2011 which is approximately twice the length of time provided initially. However, should I not receive the leave of the Court by 4:00pm on 29 July 2011, I will dismiss the application without further consideration. In case there is any misunderstanding or expectation on the Applicant’s part, the 29 July 2011 deadline means that Ms Stocker must produce the leave of the Court and not that she is pursing leave of the Court.”

[5] I received from the Applicant’s representative acknowledgement that he had received a copy of my Interim Decision on the same day (24 June 2011).

[6] On 26 July 2011 at 3:07pm my Associate received email correspondence from Mr T Hammond, Barrister representing the Applicant.

[7] The relevant parts of the correspondence are that Mr Hammond is confident of finding a firm of solicitors to instruct him on a pro bono basis and he is seeking indulgence to the Tribunal to further extend the deadline to make application to the Court by a further 14 days to Friday 12 August 2011.

[8] On 28 July 2011, a copy of Mr Hammond’s correspondence was forwarded to the Employer’s representative for comment. Comment was provided on 29 July 2011. The relevant parts of the Employer’s response are set out below.

“1. The respondent to this matter, Z.Y.X. Developmental Learning Centres Pty Ltd (formerly known as A.B.C. Developmental Learning Centres Pty Ltd (In Liquidation) (Receivers and Managers Appointed) ("respondent") no longer has any childcare centres under its care and control. In these circumstances, we consider that there is no practical utility in Mrs Stocker pursuing an application for leave, and her unfair dismissal claim, if she is seeking reinstatement. Even if she is not seeking reinstatement, and she is successful in obtaining leave, and in her substantive unfair dismissal claim, any amount of compensation ordered by FWA would be an unsecured debt.

2. Since Mrs Stocker filed her unfair dismissal application with FWA on 27 May 2010, she has been on notice by the respondent that she could not proceed with her claim against the respondent except by leave of the court (see paragraph 4(4) of the employer's response). It is now more than one year since Mrs Stocker filed her application with FWA.

3. As a result of FWA's decision dated 16 May 2011, Mrs Stocker has been on notice that FWA also considered that she needed to seek the leave of the Court to pursue her application. Some two months has passed since that time, and Mrs Stocker has still not filed the relevant application.

4. Mr Hammond's letter does not state that an application has been prepared or filed. Rather, Mr Hammond simply notes that he met with Mr Curtis (not Mrs Stocker) and although he apparently does not have capacity to take on the matter this week, did have the capacity to determine that the matter has "reasonable prospects of success" and is of the view that he should be able to find solicitors to instruct him on a probono basis. With respect:

(a) ...

(b) Mrs Stocker has had in excess of 12 months to find representation, and has not been able to do so.

5. The respondent is entitled to have closure to this matter. The respondent respectfully submits that the circumstances, and the matters raised in Mr Hammond's unsigned letter, do not warrant FWA providing a further extension to Mrs Stocker.”

DISCUSSION AND CONCLUSION TO APPLICATION

[9] The background to this application is set out in my Interim Decision of 16 May 2011.

[10] In respect to Mrs Stocker’s request, through Mr Hammond, for a further extension of time to which to obtain leave of the Court, the following particular facts are relevant.

[11] Mrs Stocker made application to FWA alleging unfair dismissal on 27 May 2010. On 11 June 2010, the Employer’s response to the application for unfair dismissal remedy states:

“The applicant cannot proceed with her claim against the respondent except by leave of the “Court” and subject to such terms as the “Court” imposes. This is because section 500(2) of the CA [Corporations Act] provides:

After the passing of the resolution for voluntary winding up, no action or civil proceedings 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.”

[12] Consequently, it cannot be disputed that Mrs Stocker has been aware for over 12 months of the Employer’s contention that, for FWA to have jurisdiction to hear and determine the application, it would be necessary for the Applicant to seek and obtain leave of the Court.

[13] The Employer’s contention regarding the need to obtain the leave of the Court was placed on transcript during proceedings on 17 August 2010 when the Applicant’s Notice of Discontinuance was set aside. These oral submissions were reduced to writing and provided to the Applicant, in the form of a Form F4-Objection to Application for Unfair Dismissal Remedy, on 18 August 2010.

[14] Following a conference on 1 September 2010, and as part of procedural directions, the Employer, on 29 September 2010, again set out that the Tribunal is unable to hear and determine the application until leave of the Court has been obtained pursuant to s.500(2) of the Corporations Act 2001.

[15] On 16 May 2011, in my Interim Decision, I determined in accordance with s.500(2) of the Corporations Act 2001, Mrs Stocker is required to seek leave of the Court as defined in s.58AA of the Corporations Act 2001 before the Tribunal could continue with her application.

[16] In my Interim Decision of 16 May 2011, I exercised my discretion and rather than dismiss the application, adjourned proceedings to enable Mrs Stocker to obtain the requisite leave of the Court. I gave the Applicant until 22 June 2011 to obtain the leave of the Court.

[17] On 24 June 2011, I extended this deadline to 29 July 2011 with the express comments that a further extension of time was not appropriate in the circumstances.

[18] The objectives of Part 3-2 - Unfair Dismissal, contained in s.381(1) of the FW Act, include:

(a) to establish a framework for dealing with unfair dismissals that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees.

[19] A further objective is that employees and employers are given a “fair go all round” (s.381(2) of the FW Act).

[20] While Mrs Stocker has been aware of the need to act expeditiously since 16 May 2011, it is now over 12 months since she was “put on notice” by the Employer of the need to obtain the leave of the Court, pursuant to s.500(2) of the Corporations Act 2001, to progress her claim for an unfair dismissal remedy.

[21] While I consider it appropriate to assess the possible prejudice to the Applicant in refusing the extension of time and dismissing the application, I also have to consider whether it was reasonably practicable for Mrs Stocker to have sought and obtained the leave of the Court in the past 12 months. For whatever reason, the Applicant did not obtain leave of the Court from 11 June 2010 and, more particularly, since 16 May 2011. It cannot be said that Mrs Stocker did not have knowledge of the Employer’s contention that it was necessary to pursue such an application to the Court.

[22] As a generalisation, it is important to note that regulated time limits within the FW Act are exercised strictly, and an extension of time is granted only in exceptional circumstances. Shortly put, the exercise of the discretion to extend time is the exception rather than the rule.

[23] In this matter, I decided, on two occasions, to provide Mrs Stocker with time to evaluate the situation in which her application found itself and remedy a deficiency in progressing her application; she has failed to do so.

[24] I consider that I have adopted a proportionate and balanced approach in allowing Mrs Stocker the opportunity to seek the leave of the Court since 16 May 2011. However, after such a period, I now agree with the Employer that in all the circumstances since the application was made on 27 May 2010, there must be finality to the application.

[25] Having considered all the facts, and the necessity in dealing with unfair dismissal applications in a balanced way, I have come to the conclusion that three days before the expiry of a previous 35 day extension of time, the Applicant’s request for a further extension is unreasonable.

[26] For these reasons, together with my Interim Decisions of 16 May 2011 ([2011] FWA 2326) and 24 June 2011 ([2011] FWA 3997), Mrs Stocker’s application will be dismissed as she has failed to provide the Tribunal with the requisite leave of the Court pursuant to s.500(2) of the Corporations Act 2001. An Order will issue accordingly to effect this Decision.

COMMISSIONER

Final written submissions:

2011:

Perth:

29 July.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR512770>