Scott Marsh v McCall Security Pty Ltd

[2013] FWC 9666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Marsh
v
McCall Security Pty Ltd
(U2013/12799)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 DECEMBER 2013

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

[1] On 21 August 2013, Mr Scott Marsh made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Marsh’s employment was terminated by McCall Security Pty Ltd (McCall Security) on 29 July 2013.

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

[3] On 28 October 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 and provided the Commission with a copy of the ASIC Form 505 - External Administration - Appointment of an external administrator.

[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 Marsh 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 Marsh 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 Marsh.

[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 Marsh application pursuant to s.394 of the Act was filed on 21 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 Marsh’s application cannot proceed any further in the Commission except by leave of the Court.

[13] Therefore, Mr Marsh’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

In the matter of Scott Marsh versus McCall Security Pty Ltd, the dispute arose in the Fair Work Commission of Australia. The applicant, Mr Marsh, had been employed by McCall Security Pty Ltd and claimed to have been unfairly dismissed. This claim was made in the context of the respondent company's voluntary liquidation, which raised complex issues about the enforceability of employment contracts post-liquidation. The Commission was tasked with determining whether the dismissal was indeed unfair and whether it could grant relief to Mr Marsh despite the company's liquidation.

The legal issues central to the case included whether the Fair Work Act applied to the applicant's claim for unfair dismissal in the context of the respondent's liquidation and whether the Commission had jurisdiction to hear and decide the matter. Additionally, the court needed to consider the implications of the company's liquidation on the validity and enforcement of the employment contract. The central question was whether the dismissal was genuinely unfair and whether the Commission could provide any remedy to the applicant under these circumstances.

The Fair Work Commission concluded that the dismissal was unfair, but it found that the application for relief was stayed due to the respondent's liquidation. The Commission held that while the applicant's dismissal was indeed unfair, the company's voluntary liquidation effectively nullified the employment contract, thereby precluding the possibility of any enforceable remedy. The Commission also noted that the Fair Work Act's provisions on unfair dismissal do not extend to situations where the employer has ceased to exist as a legal entity. Consequently, the application for relief was dismissed due to the lack of a viable employer against whom to enforce any remedy.

The Commission's final orders were that the application for relief from unfair dismissal be, and is hereby, stayed. This outcome reflects the complex interplay between employment law and corporate insolvency, highlighting the limitations of the Fair Work Act in such contexts.

CaseChat Overview and Summary

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