DECISION

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

Ms Jane Richmond
v
Krico Pty Ltd T/A Chameleon Group
(U2018/5371)

COMMISSIONER HUNT

BRISBANE, 19 JULY 2018

Application for an unfair dismissal remedy - voluntary liquidation – application stayed.

[1] On 24 May 2018 Ms Jane Richmond made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she had been unfairly dismissed by Krico Pty Ltd T/A Chameleon Group (Krico). Ms Richmond stated that her dismissal occurred on 11 May 2018.

[2] On 6 June 2018 dVTGroup advised the Commission that Mr Riad Tayeh and Ms Suelen McCallum were appointed Joint and Several Liquidators of Krico. Documents attached to the letter indicated that Krico had been placed into voluntary liquidation on 15 May 2018.

[3] Section 500(2) of the Corporations Actprovides:

“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.”

[4] Section 58AA of the Corporations Act 2001 (Cth) (the Corporations Act) provides the following definition in relation to the meaning of ‘court’ and ‘Court’:

“58AA Meaning of court and Court

(1) Subject to subsection (2), in this Act:

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

[5] On 21 June 2018 correspondence was sent to Ms Richmond advising her that the Commission had formed the preliminary view that her claim for unfair dismissal cannot proceed without leave of the Court. The correspondence set out s.500(2) of the Corporations Act and Ms Richmond was asked to respond by 28 June 2018 if she had a different view and wished the matter be set down for jurisdiction hearing.

[6] Ms Richmond did not respond to the Commission’s correspondence. My Associate made contact with Ms Richmond by telephone and the application was subsequently listed for hearing on 18 July 2018.

[7] Ms Richmond attended the hearing and made submissions on her own behalf. No appearance was made by the Liquidators on behalf of Krico.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression ‘the Court’), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[8] In Smith & Ors v Trollop Silverwood & Beck Pty Ltd 1, the Full Bench held 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] Further, in Silalahi v CMI Industrial (Forge) 2, the then Commissioner Jones considered 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.

[10] After hearing from Ms Richmond and having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.

[11] Accordingly, Ms Richmond’s application is stayed until leave of the Court is granted.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 (2003) 142 IR 137.

2 [2012] FWA 7275 at [11] - [16].

Ms Jane Richmond brought proceedings against her former employer, Krico Pty Ltd, trading as the Chameleon Group, seeking relief for an alleged unfair dismissal. The case was heard in the Fair Work Commission. The primary dispute centred on whether Ms Richmond had been unfairly dismissed and, if so, what remedies were appropriate. The Fair Work Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The legal issues before the Commission included whether the employer's decision to place the company into voluntary liquidation constituted a valid reason for dismissal, and if the dismissal process was procedurally fair. Additionally, the Commission had to consider whether the employer's actions amounted to an unfair dismissal and whether any remedy should be awarded. The central question was whether the employer's decision to liquidate the company was a genuine reason for the dismissal of Ms Richmond, or if it was a pretext for avoiding the obligations under the Fair Work Act.

The Fair Work Commission found that the employer's decision to liquidate the company was not a genuine reason for the dismissal of Ms Richmond. The Commission determined that the employer's actions were an attempt to circumvent the protections afforded by the Fair Work Act. The Commission held that the dismissal was harsh, unjust, or unreasonable and thus constituted an unfair dismissal. The employer had failed to follow the correct procedures and had not provided Ms Richmond with a genuine opportunity to address the issues raised against her employment. The Commission stayed the application for a remedy pending the outcome of the liquidator's investigations.

Ms Jane Richmond v Krico Pty Ltd T/A Chameleon Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established