Paramdeep Singh v Om Mahalaxmii Pty Ltd

[2020] FWC 3902

[2020] FWC 3902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paramdeep Singh
v
OM Mahalaxmii Pty Ltd.
(U2019/9185)

COMMISSIONER BISSETT MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 17 August 2019 Mr Paramdeep Singh made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Mr Singh stated that he was notified of his termination by OM Mahalaxmii Pty Ltd on 29 July 2019.

[2] The matter was listed for a conciliation conference on 18 October 2019. On 18 October 2019 the liquidator of the respondent company, Worrells, emailed correspondence advising that the respondent company had gone into liquidation and the liquidator would not be participating in the conciliation. An Order of the Federal Court ordering the respondent company be wound up insolvency was attached to this correspondence. As such, the conciliation did not take place.

[3] On 23 October 2019 the Commission emailed correspondence to Mr Singh advising that a resolution had been passed to voluntarily wind up the Respondent company and that a liquidator had been appointed. The letter referred Mr Singh to s.471B of the Corporations Act 2001 (Corporations Act) and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The letter noted that if Mr Singh no longer wished to pursue his unfair dismissal application he should file a Form F50 Notice of Discontinuance within seven days. Mr Singh was informed that prior to making a decision as to whether the application should proceed or not, the Commission would consider any submissions he wished to make regarding the matter, by no later than 1 November 2019.

[4] On 31 October 2019 Mr Singh filed submissions in relation to his unfair dismissal application. Mr Singh submitted that the Commission could hear an unfair dismissal application in circumstances where the employer does not object to participating in the proceedings. Mr Singh also provided submissions in relation to the merits of his unfair dismissal claim.

[5] Section 471B of the Corporations Act provides as follows:

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation property of the company; or

(b) enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

[6] Section 58AA of the Corporations Act provides the 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.

…

[7] In the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd 1 (Smith) it was held that the Australian Industrial Relations Commission was not a “Court” for the purposes of s.440D of the Corporations Act

[8] Having regard to the decision of the Full Bench in Smith, 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.

[9] I acknowledge Mr Singh’s submissions and the issues he raises in respect to his employer and the effect he says that his termination has had on him. The legislation on this issue however is clear, the Commission is unable to grant leave for his unfair dismissal application to continue in these circumstances. Leave can only be granted by a Court, regardless of the purported merits of Mr Singh’s case.

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

[11] Therefore, Mr Singh’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.