Robert Burridge v JACMAH Enterprises Pty Ltd T/A X-Men Security Services

[2022] FWC 2458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Burridge

JACMAH Enterprises Pty Ltd T/A X-Men Security Services

(U2019/3279)

COMMISSIONER BISSETT

MELBOURNE, 15 SEPTEMBER 2022

Application for an unfair dismissal remedy - deregistration - application dismissed.

On 10 May 2019 the Fair Work Commission issued a Decision[1] in relation to the application by Mr Robert Burridge(Applicant) for remedy for unfair dismissal.

The Applicant had named JACMAH Enterprises Pty Ltd T/A X-Men Security Services (Respondent) as the Respondent entity in the Form F2 – Unfair Dismissal Application (Form F2). On 10 April 2019 the Commission received email correspondence from Employment Services & Solutions Australia (ESSA) advising that the Respondent entered into liquidation on 22 March 2019.

The Decision issued on 10 May 2019 stayed the Applicant’s application on the basis that the Respondent was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, the application was not able to proceed except by leave of the Court.[2]

On 2 September 2022 the Commission performed a search on the ASIC company database which revealed that the Respondent entity had been deregistered on 5 November 2021.

On 5 September 2022 the Commission wrote to the Applicant advising of the Respondent’s deregistration and that no proceedings can continue against a deregistered company. On that basis the Applicant was given an opportunity to file a Form F50–Notice of Discontinuance (Notice of Discontinuance). The Applicant was advised that if no Notice of Discontinuance is received by 12 September 2022 the application may be dismissed because it has no reasonable prospects of success. The Applicant did not respond to the correspondence or file a Notice of Discontinuance.

In the circumstances, I am satisfied that the Applicant’s application has no reasonable prospects of success. Therefore, I will exercise my power under s.587(1)(c) of the Fair Work Act 2009 to dismiss the application. An order[3] giving effect to this decision will be issued separately.

COMMISSIONER

[1] [2019] FWC 3226

[2] Ibid

[3] PR745846

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Robert Burridge v JACMAH Enterprises Pty Ltd T/A X-Men Security Services, the Fair Work Commission dismissed the applicant's claim for unfair dismissal remedy due to the respondent's deregistration. The applicant, Robert Burridge, had filed an application for unfair dismissal against the respondent, JACMAH Enterprises Pty Ltd, which operated under the name X-Men Security Services. The initial decision issued on May 10, 2019, stayed the proceedings as the respondent had entered liquidation. Following a database search, the commission discovered that the respondent had been deregistered on November 5, 2021. The commission informed the applicant of the deregistration and advised that no proceedings could continue against a deregistered company. The applicant was given an opportunity to file a Notice of Discontinuance but failed to respond or file such a notice, leading to the dismissal of the application.

The legal issues before the commission were whether the application could proceed given the respondent's deregistration and whether the application had any reasonable prospects of success. Given the deregistration of the respondent, the commission had to determine if the applicant's application could be maintained and if it had any reasonable prospects of success. The commission exercised its power under section 587(1)(c) of the Fair Work Act 2009 to dismiss the application, as it found that the application had no reasonable prospects of success due to the respondent's deregistration.

The commission reasoned that as the respondent had been deregistered, no legal proceedings could continue against it. Additionally, the applicant did not respond to the commission's correspondence or file a Notice of Discontinuance. The commission concluded that the application had no reasonable prospects of success and exercised its power to dismiss the application. The commission emphasised that the dismissal was not a determination on the merits of the case but rather a procedural decision based on the respondent's deregistration and the applicant's failure to take appropriate action. The commission issued an order giving effect to this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established