Sandra Donner v Heritage Restaurant Pty Limited

[2013] FWC 5877

[2013] FWC 5877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Donner
v
Heritage Restaurant Pty Limited
(U2013/9000)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 AUGUST 2013

Application for relief from unfair dismissal stayed pursuant to s.500(2) of the Corporations Act 2001.

[1] Ms Sandra Donner lodged an application under to s.394 of the Fair Work Act 2009 (the Act). Ms Donner said her employment was terminated unfairly by Heritage Restaurant Pty Limited on 8 April 2013.

[2] On 22 May 2013, the Fair Work Commission contacted Heritage Restaurant Pty Limited and was told that the company had gone into receivership.

[3] On 11 June 2013, the Commission received correspondence from the Administrator which advised that:

(a) Ms Donner was employed as a casual employee by the Receivers of Heritage Restaurant Pty Limited until 3 August 2012;

(b) Ms Donner was then employed Heritage Bar and Restaurant Pty Limited (ACN: 154 914 888, the purchaser of Heritage Restaurant Pty Limited (ACN: 001 312 527);

(c) on 16 May 2013, Heritage Bar and Restaurant Pty Limited had Receivers and Managers appointed; and

(d) on 8 May 2013, Heritage Bar and Restaurant Pty Limited went into liquidation.

[4] On 10 July 2013, Jirsch Sutherland provided the Commission with documents which showed that Heritage Bar and Restaurant Pty Limited had been placed in voluntary administration and that subsequently Heritage Bar and Restaurant Pty Limited had been placed into voluntary liquidation by its creditors.

[5] On 6 August 2013, the Commission wrote to Ms Donner advising her that the creditors of Heritage Bar and Restaurant Pty Limited had passed resolutions to voluntarily wind up the company and appoint a liquidator. The letter set out s.500(2) of the Corporations Act and advised Ms Donner that it was the preliminary view of the Commission that her application could not proceed but if she wished to make submissions on this she should advise the Commission by close of business on 13 August 2013 and the matter would be set down for hearing.

[6] Ms Donner did not respond to this correspondence.

[7] It is clear that the correct name of the employer party to this proceeding should be Heritage Bar and Restaurant Pty Limited and under s.586(a) of the Act I will allow the name of the respondent to the proceeding to be corrected.

[8] s.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.”

[9] The reference to the Court in this section is a reference to the Federal Court, the Supreme Court of a State or Territory or the Family Court.

[10] Having regard to the Full Bench decision in 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.

[11] 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.

[12] Consequently as the unfair dismissal application is a civil proceeding I am satisfied that the Applicant’s application cannot proceed any further in the Commission except by leave of the Court.

[13] Therefore, the application must be 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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