Sheldon Haigh v One Key Workforce Pty Ltd

[2020] FWC 2001

[2020] FWC 2001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sheldon Haigh
v
One Key Workforce Pty Ltd
(U2018/8246)

COMMISSIONER SIMPSON BRISBANE, 29 APRIL 2020

Application for an unfair dismissal remedy – creditors winding up – application stayed – leave not sought from the court – no reasonable prospect of success – application dismissed.

[1] On 10 August 2018, Mr Sheldon Haigh made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Woolworths Group Limited (the Respondent).

[2] The matter was allocated to my chambers on 10 October and subsequently listed for a Directions Hearing on 17 October 2018.

[3] At the Directions Hearing I put it to the Applicant’s Representative, Mr Rowan Anderson of the CFMMEU, that the evidence was clear from the material that's been filed that this was the circumstance where the creditors of the company under administration had resolved to wind the company up and on that basis, because of the fact that the Fair Work Commission is not a court, I did not have any power to grant leave as described in section 502 of the Corporations Act to proceed and it can only occur with the leave of the court.

[4] Mr Anderson advised that the Applicant was not in a position to provide evidence to the contrary and accepted that the Commission would make a determination based on the submission on behalf of the liquidator.

[5] On that basis I found that the application was stayed until leave is granted by a court.

[6] On 2 March 2020, my Associate telephoned Mr Anderson for an update on the matter and whether the Applicant intended to press the Application given it had been stayed for some 15 months.

[7] On 3 March 2020, my chambers received an email from Mr Anderson stating the following:

“I understood, following a directions conference that the matter was stayed indefinitely given the below. The applicant has not sought the leave of the court. I note that the applicant considered it was not a matter for the applicant to withdraw the proceedings given the issue was raised by the Liquidator appointed to the respondent."

[8] On 16 March 2020 my chambers wrote to Mr Anderson advising of my preliminary view that given the application was filed in August 2018, and the Applicant had not sought leave of the court to proceed or indicated an intention to do so, and at that stage it was approximately 18 months since the time of filing, I may give consideration to dismissing the application on the basis that it has no reasonable prospects of success under s.587 of the Fair Work Act 2009.

[9] Mr Anderson was invited to respond with any objection to the application being dismissed, and to advise whether the Applicant wished to be heard on the matter.

[10] On 6 April 2020, my chambers received correspondence from Mr Anderson advising that the Applicant did not object to me dismissing the application.

[11] As such, I have decided to exercise power under s.587 of the Fair Work Act 2009 to dismiss the application on the basis there is no reasonable prospect of success. The application is dismissed.

COMMISSIONER

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