Steven Anderson v Fire Services Employment Pty Ltd
[2019] FWC 5962
•28 AUGUST 2019
| [2019] FWC 5962 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steven Anderson
v
Fire Services Employment Pty Ltd
(U2019/5305)
| Commissioner Bissett | MELBOURNE, 28 AUGUST 2019 |
Application for an unfair dismissal remedy – voluntary liquidation – application stayed.
On 10 May 2019 Mr Steven Anderson made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). Mr Anderson’s employment was terminated by Fire Services Employment Pty Ltd on 18 April 2019.
On 3 June 2019 a Notice of Listing was sent to the parties scheduling a conciliation for 25 June 2019.
On 21 June 2019 the Commission received email correspondence from SV Partners, Specialist Accountants and Advisors, (SV Partners) advising that Fire Services Employment Pty Ltd was in liquidation and that Mr David Stimpson of SV Partners had been appointed as liquidator. SV Partners also advised that it did not wish to participate in the conciliation. As a result the conciliation could not proceed and was cancelled. The matter was then referred for further case management.
A review of the ASIC insolvency notices database confirms that on 18 April 2019 at a general meeting of the members of company, a resolution was passed for the company to be wound up voluntarily. It also confirmed the appointment of Mr Stimpson of SV Partners as Liquidator for Fire Services Employment Pty Ltd.
On 15 August the Commission sent correspondence to Mr Anderson via email and post advising that the creditors of Fire Services Employment Pty Ltd has passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Anderson to s.500(2) of the Corporations Act 2001 (Corporations Act) and stated that it was the Commission’s view that his claim cannot proceed unless he obtained leave from the Court.
To date no further contact from Mr Anderson has been made with the Commission.
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.
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.
Having regard to this provision and 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.
In Silalahi v CMI Industrial (Forge),[2] Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the FW Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.
Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Anderson’s application cannot proceed any further in the Commission except by leave of the Court.
COMMISSIONER
<PR711744>
[1] (2003) 142 IR 137.
[2] [2012] FWA 7275 at [11]-[16].
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