Nihal Kodikara v Aussie Milk Products

[2019] FWC 3721

[2019] FWC 3721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nihal Kodikara
v
Aussie Milk Products
(U2019/974)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 30 January 2019, Mr Nihal Kodikara made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his application, Aussie Milk Products (AMP) was recorded as the employer.

[3] On 6 February 2019, Mr Brendan Nicholls, Director of AMP, advised the Commission that the employer was placed into administration on 24 January 2019. Mr Nicholls later advised the administrators were Veritas Advisory Services.

[4] On 1 March 2019, the day a conciliation conference was scheduled for, the conciliator was advised by the administrator that AMP was in administration and would probably be in liquidation soon. The administrator advised they could not proceed with the conciliation as there was no authority to settle.

[5] On 5 March 2019, a Notice of Listing was issued to the parties scheduling the matter for Arbitration Conference/Hearing on 10 May 2019. Directions were also issued for the filing of material.

[6] On 26 March 2019, Mr Kodikara advised the Commission that he had spoken to the administrator and they had agreed on a calculation for his redundancy pay which would be paid when the business was sold. The directions to file material were subsequently vacated.

[7] On 30 April 2019, the Commission telephoned Mr Kodikara seeking an update from him. Mr Kodikara said he had not yet been paid and that he would provide a further update in a week.

[8] On 10 May 2019, Mr Kodikara wrote to the Commission and advised AMP had been put into liquidation and he had been advised by the administrator to put a claim in via the FEG scheme.

[9] A review of the ASIC insolvency notices database showed that on 7 May 2019, AMP was taken to have passed a special resolution that it be wound up voluntarily. AMP’s status is ‘in liquidation.’

[10] On 17 May 2019, I caused correspondence to be sent to Mr Kodikara advising that the creditors of AMP had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Kodikara to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view the claim cannot proceed unless he obtained leave from the Court.

[11] On 21 May 2019, Mr Kodikara wrote to the Commission and said he did not agree for the case to be closed. Mr Kodikara advised he was waiting for the outcome of the FEG scheme to be known and that he would contact the Commission again.

[12] 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.”

[13] 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.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.”

[14] 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.

[15] 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.

[16] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Kodikara’s application cannot proceed any further in the Commission except by leave of the Court.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].