Shane Petrovic v The Meat-ting Place Organics T/A the Meat-ting Place Organics

[2018] FWC 4583

[2018] FWC 4583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Petrovic
v
The Meat-ting Place Organics T/A The Meat-ting Place Organics
(U2017/12143)

COMMISSIONER BISSETT MELBOURNE, 6 AUGUST 2018

Application for an unfair dismissal remedy – voluntary liquidation – application stayed.

[1] On 15 November 2017, Mr Shane Petrovic made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Petrovic stated that he was notified of his termination by The Meat-ting Place Organics (Meat-ting Place) on 27 October 2017.

[2] On 16 November 2017, Meat-ting Place telephoned the Fair Work Commission (the Commission) advising that it was in liquidation and that a liquidator had been appointed. This was confirmed in an email to the Commission on 23 November 2017, which also contained the details of the liquidator.

[3] The matter was listed for conciliation on 5 December 2017. However, the Commission received an email from the liquidator on 24 November 2017 requesting that the conciliation be cancelled. The conciliation therefore did not proceed.

[4] The Commission performed a check on the ASIC insolvency notices database, which showed that on 25 September 2017, the company went into administration and an administrator was appointed. A subsequent notice dated 1 November 2017 showed that at the second meeting of creditors on 31 October 2017, the creditors passed a special resolution for the company to be wound up voluntarily and the administrator became the liquidator pursuant to s.446A of the Corporations Act 2001 (Corporations Act).

[5] On 1 December 2017, the Commission sent a letter to Mr Petrovic, via email, which advised him that a resolution had been passed to voluntarily wind up the company and that a liquidator had been appointed. The letter referred Mr Petrovic to s.500(2) of the Corporations Act and stated it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The letter noted that if Mr Petrovic had a different view, the matter would be set down for a jurisdictional hearing and he was to advise the Commission by close of business on 8 December 2017 if he wished for this to occur. Mr Petrovic did not respond to the Commission’s correspondence.

[6] As no response was received in relation to the letter sent to Mr Petrovic on 1 December 2017, the Commission attempted to telephone him on 12 December 2017 to request an update on how he wished to progress his matter. This was unsuccessful and a voicemail was left requesting a return call. Mr Petrovic attempted to return the call on the same day and left a voicemail. Shortly after, the Commission attempted to return Mr Petrovic’s call but was unable to reach him.

[7] On 17 April 2018, a telephone call was made to Mr Petrovic requesting an update. Mr Petrovic advised that he had attempted to obtain his outstanding entitlements from Meat-ting Place through the Fair Entitlements Guarantee Scheme but was unsuccessful. Mr Petrovic further enquired about the cost of making an application for leave from the Court to proceed with his application at the Commission, and was advised that any enquiries would need to be made with the appropriate Court.

[8] On 25 July 2018, the Commission sent an email to Mr Petrovic confirming that other than the telephone call to him on 17 April 2018, no response was received to the correspondence dated 1 December 2017. The email also noted that Mr Petrovic could discontinue his matter by filing a Form F50 – Notice of Discontinuance. The next day, a further email was sent to Mr Petrovic requesting his response by close of business on 2 August 2018.

[9] To date, Mr Petrovic has not made contact with the Commission.

[10] 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.”

[11] Section 58AA of the Corporations Act provides the following definition in relation to the 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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.”

[12] Having regard to this provision and of the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd 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.

[13] 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.

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

[15] Therefore, Mr Petrovic’s application under s.394 of the Act is stayed until leave of the Court is granted.

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].