Paul Connell v Renovatex Pty Ltd T/A Carbon Footie

[2018] FWC 5546

[2018] FWC 5546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Connell
v
Renovatex Pty Ltd T/A Carbon Footie
(U2017/11936)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 SEPTEMBER 2018

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

[1] On 9 November 2017, Mr Paul Connell 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] Mr Connell named Renovatex Pty Ltd t/a Carbon Footie (Renovatex) as the respondent in his Form F2 – Unfair Dismissal Application (Form F2). Mr Connell further stated in his Form F2 that his employment had been terminated by Renovatex on 19 October 2017, and that it took effect on 20 October 2017.

[3] On 22 November 2017, a Notice of Listing was sent to the parties scheduling a conciliation for 6 December 2017.

[4] On 29 November 2017, the Commission was advised via telephone that Renovatex was in liquidation. Later the same day, correspondence was received, via email, confirming this advice and attaching ASIC Form 505, which confirmed the appointment of Ticcidew Pty Ltd (Ticcidew) as liquidator. The correspondence further stated that Ticcidew did not wish to participate in conciliation. As a result, the conciliation was cancelled.

[5] The Commission performed a check on the ASIC insolvency notices database which showed that on 27 November 2017, at a general meeting of members, it was resolved that Renovatex would be wound up and that Ticcidew had been appointed liquidator.

[6] On 4 December 2017, correspondence was sent to Mr Connell, via email, advising him that the creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Connell to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The correspondence also noted that Mr Connell could be heard at a jurisdictional hearing if he had a different view, and that he was to advise the Commission by close of business on 11 December 2017 if he wished for this to occur.

[7] Later the same day Mr Connell advised the Commission, via both telephone and follow-up email, that he believed the directors of Renovatex had formed a phoenix company that operated identically to Renovatex, other than the change in name. Mr Connell indicated in his follow-up email that he believed the directors knowingly liquidated Renovatex and formed the new company in order to avoid paying Mr Connell his outstanding entitlements.

[8] On 8 December 2017, Mr Connell emailed correspondence to the Commission to request that the matter be set down for a jurisdictional hearing, given the information advised via telephone and email on 4 December 2018.

[9] On 14 December 2017, Mr Connell emailed the Commission attaching documents to evidence his outstanding entitlements.

[10] On the same day, the Commission telephoned Mr Connell to advise that I did not deem a jurisdictional hearing was appropriate in the circumstances and that I proposed to convene a mention hearing instead.

[11] The mention hearing proceeded before me on 20 December 2017. Mr Connell and Mr Tony Travers from Ticcidew appeared over the telephone. Following the mention hearing, the Commission emailed correspondence to Mr Connell on 22 December 2017 with a list of organisations from which he could seek legal advice.

[12] On 21 August 2018, correspondence was emailed to Mr Connell noting that some time had passed since the email sent to him on 22 December 2017. The correspondence also noted that Mr Connell could discontinue his matter by filing a Form F50 – Notice of Discontinuance and requested that a response be provided by close of business on 28 August 2018.

[13] To date, Mr Connell has not made contact with the Commission.

[14] 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.”

[15] 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.”

[16] 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.

[17] 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.

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

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

DEPUTY PRESIDENT

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].