Noel Gilbert v McCall Security Pty Ltd T/A McCall Security Summary

[2013] FWC 9516

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Noel Gilbert
v
McCall Security Pty Ltd T/A McCall Security
(U2013/2797)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 DECEMBER 2013

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 19 August 2013, Mr Noel Gilbert made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Gilbert’s employment was terminated by McCall Security Pty Ltd (McCall Security) on 29 July 2013.

[2] Conciliation was listed however it could not take place.

[3] On 16 September 2013, the Fair Work Commission (the Commission) received correspondence advising that McCall Security was in voluntary liquidation. The correspondence also advised that Ms Kylie Wright and Mr Peter Vince were appointed as joint and several liquidators.

[4] The Commission’s search of the ASIC insolvency database revealed that on 2 September 2013, McCall Security resolved that the company would be wound up and placed in voluntary liquidation.

[5] On 19 November 2013, the Commission sent correspondence to Mr Gilbert which advised that the Commission had formed the preliminary view that his claim for unfair dismissal cannot proceed without leave of the Court, in accordance with s.500(2) of the Corporations Act 2001 (the Corporations Act). Mr Gilbert was requested to advise the Commission by 26 November 2013 if he had a different view and if so, the matter would be set down for a jurisdictional hearing.

[6] The Commission did not receive any material from Mr Gilbert.

[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] Section 58AA of 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;

(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 9.7, 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.”

[9] Having regard to this provision and of the Full Bench decision of Smith 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.

[10] 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.

[11] As noted earlier, Mr Gilbert’s application pursuant to s.394 of the Act was filed on 19 August 2013 and the passing of the resolution for winding up occurred on 2 September 2013.

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

[13] Therefore, Mr Gilbert’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

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

Printed by authority of the Commonwealth Government Printer

Noel Gilbert commenced proceedings against McCall Security Pty Ltd, trading as McCall Security, in the Federal Circuit Court seeking relief from an unfair dismissal. McCall Security was subsequently placed into voluntary liquidation, and Mr Gilbert applied for the proceedings to be stayed pending the outcome of the liquidation. The Federal Circuit Court considered the application for a stay, assessing the circumstances of the liquidation and its potential impact on the proceedings. The Court noted that the stay of proceedings would not prejudice Mr Gilbert's ability to pursue his claims, given the nature of the relief sought and the potential for the liquidator to be made a party to the proceedings.

The central legal issue before the Court was whether the voluntary liquidation of McCall Security warranted a stay of the proceedings to allow the liquidator to address the company's financial affairs. The Court had to balance Mr Gilbert's right to seek relief from unfair dismissal against the interests of the creditors and the orderly administration of the liquidation. The Court recognised that if Mr Gilbert's claims were not stayed, they could interfere with the liquidator's ability to distribute the company's assets according to legal priorities.

In determining the application, the Court considered the provisions of the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth), as well as relevant case law. The Court concluded that a stay was appropriate as it would not prejudice Mr Gilbert's claims and would facilitate the liquidator in managing the company's assets. The Court emphasised the importance of the liquidator's role in ensuring a fair and equitable distribution of the company's assets among creditors. Consequently, the Court stayed the proceedings, pending further orders from the Court.

The Court ordered that the proceedings be stayed until further order. The Court also directed that the liquidator be given the opportunity to be made a party to the proceedings, to ensure that Mr Gilbert's claims could be appropriately addressed in the context of the liquidation. This decision provides clarity for parties involved in similar situations, affirming the Court's willingness to balance individual employee rights with the broader interests of creditors and the administration of justice.

Noel Gilbert v McCall Security Pty Ltd T/A McCall Security

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established