Natalie Ryan v Tempo Holidays Pty Ltd
[2020] FWC 132
•14 JANUARY 2020
| [2020] FWC 132 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Natalie Ryan
v
Tempo Holidays Pty Ltd
(U2019/10818)
COMMISSIONER BISSETT | MELBOURNE, 14 JANUARY 2020 |
Application for an unfair dismissal remedy.
[1] On 24 September 2019, Ms Natalia Ryan made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Ms Ryan stated that she was notified of her termination by Tempo Holidays Pty Ltd (Tempo Holidays) on 19 September 2019.
[2] On 22 October 2019 the Commission attempted to contact Tempo Holidays to confirm an email address for service. A contact person from William Buck answered the call and advised that Tempo Holidays was under administration and that William Buck was the Administrator. They provided the Commissioner with a contact email address for Tempo Holidays and the Administrator.
[3] Later that day the Commission emailed correspondence to Tempo Holidays and the Administrator advising that Ms Ryan has made an unfair dismissal application and that the matter was listed for a conciliation conference. The Commission received a bounce back notification for Tempo Holiday’s email address.
[4] In reply to the Commission’s email the Administrator emailed correspondence to the Commission attaching a letter from Mr Laurie Fitzgerald (Joint and Several Administrator from William Buck) advising that Ms Ryan was terminated by the Administrators in accordance with the company’s insolvency and his appointment as Joint and Several Administrator. Mr Fitzgerald advised that the Administrators will not be in attendance nor be represented at any future conciliation in relation to the matter.
[5] On 23 October 2019, as the Administrator had advised they did not intend to attend or participate in the conciliation conference, the conference was cancelled and a notice advising of the cancellation was issued to the parties.
[6] On 29 October 2019 the Administrator emailed correspondence to the Commission advising that Tempo Holidays had entered into voluntary liquidation. The email correspondence attached a copy of a report to creditors dated 28 October 2019 and Australian Securities and Investments Commission (ASIC) Form 505 that noted Mr Fitzgerald from William Buck was appointed as Liquidator. This correspondence was forwarded to Ms Ryan’s nominated email address.
[7] The Commission performed a check on the ASIC insolvency notices database which showed that on 23 September 2019 the Tempo Holidays went into administration and William Buck was appointed as Administrator. A subsequent notice dated 29 October 2019 stated that the company had passed a special resolution to be wound up voluntarily and the Administrator became the Liquidator pursuant to s.446A of the Corporations Act 2001 (Corporations Act).
[8] On 30 October 2019 the Commission sent correspondence to Ms Ryan to her nominated email address and postal address advising that a resolution had been passed to voluntarily wind up the company and that a Liquidator had been appointed. The letter referred Ms Ryan to s.500(2) of the Corporations Act and stated it was the Commission’s preliminary view that her claim could not proceed unless she obtained leave of the Court. The letter noted that if Ms Ryan no longer wished to pursue her unfair dismissal application she could file a Form F50 Notice of Discontinuance, otherwise the matter will be referred to a Member of the Commission for consideration.
[9] Ms Ryan did not respond to the correspondence nor file a Notice of Discontinuance.
[10] 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.”
[11] Section 58AA of the Corporations Act provides the following definition in relation to the 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;
(c) the Family Court of Australia;
(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.
(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 9.6A, be brought in any court.”
[12] Having regard to this provision and of the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd 1, 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.
[13] 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 FW Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.
[14] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Ms Ryan’s application cannot proceed any further in the Commission except by leave of the Court.
[15] Therefore, Ms Ryan’s application under s.394 of the FW Act is stayed until leave of the Court is granted.
COMMISSIONER
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1 (2003) 142 IR 137.
2 [2012] FWA 7275 at [11] - [16].
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