Shane Tyler v Kangaroo Scaffolding (Aus) Pty Ltd

[2016] FWC 6204

[2016] FWC 6204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Tyler
v
Kangaroo Scaffolding (AUS) Pty Ltd
(U2015/2134)

COMMISSIONER WILSON MELBOURNE, 31 AUGUST 2016

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

[1] On 5 January 2015, Mr Shane Tyler made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act). Mr Tyler’s employment was terminated by Kangaroo Scaffolding (Australia) Pty Ltd on 22 December 2014.

[2] On 6 February 2015, Kangaroo Scaffolding filed their response to the application.

[3] The matter was subject of conciliation on 26 February 2015 however, it was not resolved. Directions were issued and the matter was listed for hearing.

[4] On 13 April 2015, the Commission received correspondence advising that Kangaroo Scaffolding was in voluntary liquidation.

[5] SV Partners advised the Commission that Kangaroo Scaffolding (Australia) Pty Ltd objected to Mr Tyler’s application pursuant to s.471B of the Corporations Act 2001 (the Corporations Act).

[6] On 30 April 2015, the Commission wrote to Mr Tyler and advised him that creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Tyler to s.500(2) of the Corporations Act.

[7] Mr Tyler was invited to be heard in relation to the Commission’s position if he disagreed. Mr Tyler did not respond to the Commission’s correspondence.

[8] On 31 August 2016, SV Partners provided the Commission with a copy of the ASIC Form 505, External Administration Appointment of an external administrator which indicated that the creditors had resolved to voluntarily wind up the company on 11 March 2015.

[9] 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.”

[10] 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.”

[11] 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.

[12] 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.

[13] As noted earlier, Mr Tyler’s application pursuant to s.394 of the FW Act was filed on 5 January 2015 and the passing of the resolution for winding up occurred on 11 March 2015.

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

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

COMMISSIONER

 1 Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

 2   [2012] FWA 7275 at [11] - [16]

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