Robert Bailey v Boney Pty Ltd T/A See Lion Cafe
[2014] FWC 7240
•21 OCTOBER 2014
| [2014] FWC 7240 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Bailey
v
Boney Pty Ltd T/A See Lion Cafe
(U2014/7725)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 21 OCTOBER 2014 |
Application for relief from unfair dismissal - liquidation - application stayed.
[1] On 2 June 2014, Mr Robert Bailey made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Bailey’s employment was terminated by Boney Pty Ltd T/A See Lion Cafe on 26 May 2014.
[2] On 8 July 2014, See Lion Cafe filed its response to the application.
[3] The application did not resolve at conciliation and directions were issued to the parties and the matter listed for hearing.
[4] On 18 August 2014, the Fair Work Commission received correspondence from SV Partners advising that on 24 July 2014 See Lion Cafe was placed in liquidation and Mr Daniel Quinn and Mr Stephen Hathway were appointed Joint and Several Liquidators.
[5] On 28 August 2014, SV Partners forwarded the Commission the Report to Creditors.
[6] An examination of the ASIC website disclosed that on 24 July 2014 a general meeting of the members of the Company had resolved that the Company be wound up and liquidators appointed.
[7] On 28 August 2014, the Commission wrote to Mr Bailey and advised him that a resolution to voluntarily wind up the company had been passed and a Liquidator had been appointed. The letter referred Mr Bailey to s.500(2) of the Corporations Act 2001 (the Corporations Act).
[8] On 4 September 2014 Mr Bailey contacted the Commission as SV had told him that the matter would not proceed. He was told the matter remained listed for 13 and 14 October 2014.
[9] On 5 September 2014 a Commission staff member left a message for Mr Bailey advising him of the letter sent on 28 August 2014.
[10] On the same date Mr Bailey advised that he wanted the matter to proceed and Mr Bailey filed his material in support of his application.
[11] On 7 October 2014 the matter was listed for mention and directions by telephone before Senior Deputy President Drake.
[12] On 10 October 2014 the parties were advised that the jurisdictional hearing would commence at 9am on 13 October 2014. On the same day an email was sent to Mr Bailey advising him that he would need to make submissions as to why his application should not be stayed.
[13] Mr Bailey did not attend the hearing. My Associate contacted Mr Bailey who first advised her that he thought that the hearing would be conducted by telephone. Mr Bailey then told my Associate that he had not received any correspondence about the hearing. When asked how he knew about the hearing that morning Mr Bailey discontinued the call. When my Associate called Mr Bailey again he advised that he had not received any mail from the Commission for 2 months.
[14] On 15 October 2014 I directed Mr Bailey to file any submissions he wished to rely upon as to why his application should not be stayed until he obtained an order of the Court to proceed.
[15] On 21 October 2014 Mr Bailey responded and advised that he was seeking a ruling so that he could receive payments from Centrelink. He thought that given that Boney did not participate in the proceedings that an order would be made in his favour by default.
[16] 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.
[17] 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.”
[18] 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.
[19] 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.
[20] As noted earlier, Mr Bailey’s application pursuant to s.394 of the Act was filed on 2 June 2014 and the passing of the resolution for winding up occurred on 24 July 2014.
[21] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Bailey’s application cannot proceed any further in the Commission except by leave of the Court.
[22] Therefore, Mr Bailey’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]
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