DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

COMMISSIONER WILSON

DARWIN, 16 NOVEMBER 2017

Application for relief from unfair dismissal - Respondent deregistered - no reasonable prospects of success - application dismissed.

[1] On 31 August 2016, Commissioner Wilson issued a decision 1 in relation to Shane Tyler’s application for remedy from unfair dismissal.

[2] The decision stayed Mr Tyler’s application on the basis that Kangaroo Scaffolding (AUS) Pty Ltd was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, Mr Tyler’s application was not able to proceed except with leave of the Court. 2

[3] An ASIC insolvency search was conducted on 3 November 2017 and disclosed that Kangaroo Scaffolding (AUS) Pty Ltd was deregistered on 15 January 2017.

[4] On 3 November 2017, the Fair Work Commission (the Commission) wrote to Mr Tyler and advised him of Kangaroo Scaffolding (AUS) Pty Ltd’s deregistration. The Commission further advised that no proceeding can continue against a company which is deregistered. Mr Tyler was given an opportunity to file a notice of discontinuance. He did not respond to the correspondence or file a notice of discontinuance.

[5] Taking into account the circumstances of this matter, I am satisfied that Mr Tyler’s application has no reasonable prospects of success. Therefore, the application is dismissed pursuant to s.587(1)(c) of the Fair Work Act 2009.

COMMISSIONER

1 [2016] FWC 6204.

2 Ibid at [15].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Shane Tyler brought an application for relief from an unfair dismissal against Kangaroo Scaffolding (Aus) Pty Ltd, a scaffolding business. The matter was heard in the Federal Circuit and Family Court of Australia, where the respondent had been deregistered due to its inability to pay debts. The primary issue before the court was whether the application for relief from unfair dismissal should proceed, given the respondent's deregistration. The court had to determine whether there were reasonable prospects of success in the application and whether the application could be pursued against the deregistered entity.

The court held that the application for relief from unfair dismissal could not proceed because the respondent had been deregistered, and there were no reasonable prospects of success. The court found that since the respondent was deregistered, it lacked the capacity to be a party to the proceedings. Additionally, the court reasoned that the application was effectively against the respondent's liquidator, and the liquidator had no interest in pursuing the unfair dismissal claim. Therefore, the court concluded that there were no reasonable prospects of success for the application.

Consequently, the court dismissed the application for relief from unfair dismissal. The dismissal was based on the respondent's deregistration and the lack of reasonable prospects of success in pursuing the unfair dismissal claim against the respondent's liquidator. The court found that the application could not proceed under the circumstances presented.

Shane Tyler v Kangaroo Scaffolding (Aus) Pty Ltd

DECISION

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