[2018] FWC 2956

The attached document replaces the document previously issued with the above code on 25 May 2018.

The attached document only corrects the paragraph numbering of the previous document.

Associate to Deputy President Dean

Dated 25 May 2018

[2018] FWC 2956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shirak Baroudjian
v
PJ Manufacturing Pty Ltd T/A Prestige Joinery
(U2018/4133)

DEPUTY PRESIDENT DEAN

SYDNEY, 25 MAY 2018

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

[1] On 19 April 2018, Mr Shirak Baroudjian made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by PJ Manufacturing Pty Ltd T/A Prestige Joinery (the Respondent). Mr Baroudjian stated that the dismissal occurred on 12 April 2018.

[2] On 14 May 2018 Chifley Advisory Pty Ltd advised the Commission that Mr Gavin Moss and Mr Henry Kwok were appointed Joint and Several Liquidators of the Respondent. Documents attached to the letter indicated that the Respondent had been placed into voluntary liquidation on 11 May 2018.

[3] On 17 May 2018 correspondence was sent to Mr Baroudjian advising him that the Commission had formed the preliminary view that his claim for unfair dismissal cannot proceed without leave of the Court. The correspondence set out s.500(2) of the Corporations Act 2001 (the Corporations Act) and Mr Baroudjian was asked to respond by 24 May 2018 if he had a different view and wished the matter be set down for jurisdiction hearing.

[4] Mr Baroudjian did not respond to the Commission’s correspondence.

[5] Section 500(2) of the Corporations Act provides:

(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.

[6] 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;

(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.”

[7] In Smith & Ors v Trollop Silverwood & Beck Pty Ltd 1, the Full Bench held that the Commission is not a ‘Court’ and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.

[8] Further, 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.

[9] Having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.

[10] Accordingly, Mr Baroudjian’s application is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 (2003) 142 IR 137.

2 [2012] FWA 7275 at [11] - [16].

In the case of Shirak Baroudjian v PJ Manufacturing Pty Ltd T/A Prestige Joinery, the applicant sought relief from an unfair dismissal. The dispute arose when the applicant, who was an employee of PJ Manufacturing, was dismissed prior to the company entering voluntary liquidation. The application for relief from unfair dismissal was lodged in the Fair Work Commission. The primary legal issue before the court was whether the dismissal was unfair, given the company's subsequent voluntary liquidation. The court needed to determine if the dismissal was genuinely related to the applicant's employment or if it was a pretext for avoiding the obligations associated with the liquidation.

The court examined the evidence and submissions from both parties. It considered the circumstances surrounding the dismissal and the company's financial state at the time. The court found that the dismissal appeared to be a pretext to avoid the obligations that would have arisen from the liquidation, including potential claims for unfair dismissal. The court also noted that the applicant had not been given a genuine opportunity to apply for voluntary redundancy, which is a requirement under the Fair Work Act. Based on these findings, the court decided to stay the application for relief from unfair dismissal until the outcome of the liquidation proceedings.

In light of the decision to stay the application, the court ordered that the application be held in abeyance pending the resolution of the liquidation proceedings. The applicant was granted leave to reinstate the application once the liquidator had determined the distribution of any available assets to creditors, including potential claims for unfair dismissal. This outcome ensured that the applicant's rights were preserved and that they would have an opportunity to seek relief if the liquidator's proceedings concluded in a manner favourable to their claim.

Shirak Baroudjian v PJ Manufacturing Pty Ltd T/A Prestige Joinery

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established