Russell Dunlop v McCall Security Pty Ltd

[2013] FWC 9513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Russell Dunlop
v
McCall Security Pty Ltd
(U2013/13110)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 DECEMBER 2013

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 30 August 2013, Mr Russell Dunlop made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Dunlop’s employment was terminated by McCall Security Pty Ltd (McCall Security) on 11 August 2013.

[2] Conciliation was listed however it could not take place.

[3] On 18 September 2013, the Fair Work Commission (the Commission) received correspondence advising that McCall Security was in voluntary liquidation. The correspondence also advised that Ms Kylie Wright and Mr Peter Vince were appointed as joint and several liquidators.

[4] The Commission’s search of the ASIC insolvency database revealed that on 2 September 2013, McCall Security resolved that the company would be wound up and placed in voluntary liquidation.

[5] On 19 November 2013, the Commission sent correspondence to Mr Dunlop which advised that the Commission had formed the preliminary view that his claim for unfair dismissal cannot proceed without leave of the Court, in accordance with s.500(2) of the Corporations Act 2001 (the Corporations Act). Mr Dunlop was requested to advise the Commission by 26 November 2013 if he had a different view and if so, the matter would be set down for a jurisdictional hearing.

[6] The Commission did not receive any material from Mr Dunlop.

[7] 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.

[8] 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.”

[9] 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.

[10] 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.

[11] As noted earlier, Mr Dunlop’s application pursuant to s.394 of the Act was filed on 30 August 2013 and the passing of the resolution for winding up occurred on 2 September 2013.

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

[13] Therefore, Mr Dunlop’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]

Printed by authority of the Commonwealth Government Printer

The case of Russell Dunlop against McCall Security Pty Ltd involves an application for relief from an unfair dismissal decision. The dispute arose following the dismissal of the applicant, Mr. Dunlop, and his subsequent claim for unfair dismissal. McCall Security Pty Ltd, the respondent, opposed the claim on the grounds that the company had entered voluntary liquidation, rendering the application moot. The matter was brought before the Fair Work Commission, which had to determine whether to proceed with the application for relief or to stay it due to the company's liquidation.

The central legal issue the Commission had to address was whether the application for relief from unfair dismissal could be entertained given that the company had entered voluntary liquidation, effectively ceasing its operations. The Commission needed to consider the implications of the company's liquidation on the proceedings and whether it was appropriate to continue with the application for relief. The key consideration was whether the applicant's rights could be vindicated in the context of the company's financial collapse.

The Fair Work Commission concluded that the application for relief from unfair dismissal should be stayed. The Commission reasoned that the company's entry into voluntary liquidation meant there were no longer any assets or ongoing operations to which the applicant could be reinstated. Consequently, the Commission determined that it would be futile to proceed with the application for relief, as there were no practical remedies that could be granted. The Commission stayed the application to prevent any further costs or delays in proceedings that would not serve any useful purpose.

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