Stephen Ennis v Archiapps Pty Ltd

[2019] FWC 1480

[2019] FWC 1480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Ennis
v
Archiapps Pty Ltd
(U2018/3495)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 4 April 2018, Mr Stephen Ennis made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Ennis named Archiapps Pty Ltd (Archiapps) as the respondent entity in his Form F2 – Unfair Dismissal Application (Form F2). Also in his Form F2, Mr Ennis stated that his employment had been terminated by Archiapps on 4 April 2018.

[3] On 10 April 2018, a Notice of Listing was sent to the parties scheduling a conciliation for 7 May 2018.

[4] The conciliation scheduled for 7 May 2018 could not take place due to operational reasons. The Commission notified the parties of the cancellation via telephone as well as via a cancellation Notice of Listing.

[5] Later on 7 May 2018, a new Notice of Listing was sent to the parties scheduling a new conciliation for 14 May 2018.

[6] On 11 May 2018, Mr Ennis telephoned the Commission advising that Archiapps had filed for bankruptcy and that an administrator or liquidator had been appointed.

[7] The conciliation scheduled for 14 May 2018 could not take place as the contact person for Archiapps was unable to be reached and it appeared that the telephone line had been disconnected. Mr Ennis advised the Commission conciliator that Archiapps was in liquidation.

[8] On 21 May 2018, the Commission received the ASIC Form 505 from Hall Chadwick, which confirmed it had been appointed as liquidator for Archiapps. The ASIC insolvency notices database confirmed this appointment and also showed that a general meeting of members held on 8 May 2018 resolved to wind up Archiapps.

[9] On 22 May 2018, correspondence was sent to Mr Ennis, via email, advising him that the creditors had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The letter referred Mr Ennis to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was the Commission’s preliminary view that his claim could not proceed unless he obtained leave of the Court. The correspondence also noted that Mr Ennis could be heard at a jurisdictional hearing if he had a different view, and that he was to advise the Commission by close of business on 1 June 2018 if he wished for this to occur.

[10] Mr Ennis did not make any contact with the Commission.

[11] On 15 February 2019, the Commission telephoned Mr Ennis to query his intention with regards to his matter. Mr Ennis indicated that he did not wish to withdraw his application.

[12] 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.”

[13] 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.”

[14] 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.

[15] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705594>

 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].