Rachael Spencer v And Chill Pty Ltd

[2019] FWC 5718

[2019] FWC 5718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael Spencer
v
And Chill Pty Ltd
(U2019/4191)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 11 April 2019, Mrs Rachael Spencer 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 her Form F2 – Unfair Dismissal Application, Mrs Spencer submitted that she was notified of her dismissal by And Chill Pty Ltd (And Chill) on 14 March 2019 and that her dismissal took effect on 25 March 2019.

[3] The matter was initially listed for conciliation on 22 May 2019 but did not proceed due to the unavailability of a representative for And Chill. A second conciliation was subsequently listed for 2 July 2019. The Commission’s records indicate that this also did not take place following notification that And Chill had been placed into administration and that the appointed administrators had no authority to participate in the conciliation on behalf of And Chill.

[4] On 3 July 2019, email correspondence was received from McGrath Nicol advising that Mr Barry Kogan and Ms Kathy Sozou had been appointed Joint and Several Voluntary Administrators of And Chill on 28 June 2019. An ASIC Form 505 – External Administration or Controllership Appointment of an administrator or controller dated 28 June 2019 was annexed to the email correspondence. McGrath Nicol requested that Mrs Spencer’s unfair dismissal matter be stayed on the basis of the appointment of administrators.

[5] On 6 July 2019, the Commission received email correspondence from Mr Callum Forbes of And Chill, which advised that Mr Kogan and Ms Sozou had been appointed Joint and Several Voluntary Administrators of And Chill and further, that they have assumed control of the company’s affairs, which ceased trading effective immediately due to insufficient funds.

[6] On 29 July 2019, I caused the following email to be sent to McGrath Nicol and Mrs Spencer:

“I refer to your request for the above matter to be stayed on the basis of the appointment of administrators.

The request has been considered by Deputy President Clancy - Unfair Dismissal Practice Leader.

I refer to the decision of the Fair Work Commission [2015] FWC 1232 where it was held that s.440D of the Corporations Act 2001 does not represent a bar to an unfair dismissal application.

As such your request to have the matter stayed has been refused and the matter will proceed to a conference/hearing.”

[7] A Notice of Listing was subsequently sent to the parties scheduling the matter for a Jurisdiction and Arbitration Conference/Hearing on 23-25 September 2019.

[8] On 12 August 2019, McGrath Nicol left a voicemail message with the Commission advising that And Chill had gone into liquidation on 2 August 2019 and further, that it had been appointed liquidators and did not intend to participate further in the unfair dismissal matter.

[9] Subsequently on the same day, an email was received from McGrath Nicol advising that And Chill was placed into liquidation on 2 August 2019 and on that basis, it requested that Mrs Spencer’s unfair dismissal matter be stayed. The email contained an ASIC Form 509D – Notice of special resolution to wind up a company which indicated that the creditors of And Chill had resolved that the company be wound up on 2 August 2019 and that the appointed liquidator was to be the same as the administrator.

[10] A review of the ASIC insolvency notices database confirms the appointments of Mr Kogan and Ms Sozou of McGrath Nicol as Joint Liquidators for And Chill.

[11] On 13 August 2019, I caused correspondence to be sent to Mrs Spencer, via email and post, advising that the creditors of And Chill had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mrs Spencer to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that her claim cannot proceed unless she obtained leave from the Court.

[12] To date, no further contact from Mrs Spencer has been made with the Commission.

[13] 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.”

[14] 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.”

[15] 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.

[16] 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.

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

DEPUTY PRESIDENT

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].