Sashia Lee Golding v Speedy Plants Pty Limited ATF the Speedy Plants Trust (Liquidator appointed)
[2011] FWA 4535
•14 JULY 2011
[2011] FWA 4535 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sashia Lee Golding
v
Speedy Plants Pty Limited ATF The Speedy Plants Trust (Liquidator appointed)
(U2011/536)
COMMISSIONER ROBERTS | BRISBANE, 14 JULY 2011 |
Application for unfair dismissal remedy - jurisdiction - liquidator appointed.
[1] This decision concerns an application lodged by Ms Golding on 14 March 2011 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of her employment by Speedy Plants Pty Limited ATF The Speedy Plants Trust (the Company).
[2] The application was the subject of unsuccessful conciliation on 11 April 2011 and then came before me for arbitration in Brisbane on 14 July 2011. Shortly prior to the scheduled arbitration, I was advised by Worrells Solvency & Forensic Accountants (Worrells) that it had been appointed as the liquidator of the Company on 12 July 2011. Worrells supplied me with a copy of the appointment document together with a Statement of Resolutions by Members also dated 12 July 2011 which appointed Worrells as liquidator. This material was also supplied to the Applicant via her representative, the Australian Workers’ Union (the Union). Worrells further advised that the Company had no assets and would not be represented at the scheduled arbitration.
[3] At the hearing on 14 July 2011, Mr C Donati and Mr D Broanda, both from the Union, appeared for Ms Golding. As I had been notified prior to the hearing, neither the Company nor the liquidator entered an appearance.
[4] At the commencement of the hearing, I informed the Union of the provisions of the Corporations Act 2001 (the Corporations Act) which states:
“500 Execution and civil proceedings
(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.
(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.
(3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property or books in his, her or its hands to which the company is prima facie entitled.”
[5] On the face of the above section of the Corporations Act, I informed the Union that it was my prima facie view that the arbitration was unable to proceed. After taking time to consider his position, Mr Broanda advised me that he had nothing to offer in opposition to the view that the Tribunal is jurisdictionally barred from hearing and determining Ms Golding’s application for relief at this time. He requested however that I issue a written decision determining the jurisdictional point.
[6] The application of section 500 of the Corporations Act has been the subject of several previous decisions by this Tribunal and I agree with the conclusions reached by Commissioner McKenna and Commissioner Williams in Lawler v ABC Developmental Learning Centres Pty Ltd 1 and Marshall v Challenge Australian Dairy Pty Ltd2respectively.
[7] In the light of the above decisions and my own view on the application of section 500 of the Corporations Act, my conclusion and finding is that Ms Golding’s application is an action or other civil proceeding within the meaning of section 500 of the Corporations Act and can only be proceeded with by leave of a Court and subject to any terms the Court imposes. The Tribunal is not a Court within the meaning of the Corporations Act (see section 58A) and has no power to proceed further with Ms Golding’s application unless she obtains the leave of a Court to allow her to continue with this application.
[8] It is my view and determination that Ms Golding’s application should not be dismissed at this time but should be adjourned indefinitely. Should Ms Golding receive the permission of a Court to proceed with her application for relief, that application can be pressed at a future date.
COMMISSIONER
Appearances:
C Donati and D Broanda of the Australian Workers’ Union for the Applicant.
Hearing details:
Brisbane.
2011:
July 14.
1 [2010] FWA 7679.
2 [2011] FWA 2567.
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