Steven Wise v Has Group (WA) Pty Ltd

[2015] FWC 3449

[2015] FWC 3449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Wise
v
HAS Group (WA) Pty Ltd
(U2015/2692)

COMMISSIONER WILLIAMS PERTH, 20 MAY 2015

Termination of employment - respondent in liquidation.

[1] Mr Steven Wise (Mr Wise) has made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Wise’s employment was terminated by HAS Group (WA) Pty Ltd on 30 January 2015.

[2] The Commission received correspondence from Melsom Robson Chartered Accountants advising that liquidators had been appointed.

[3] The ASIC website disclosed that a general meeting of members of the company resolved on 5 March 2015 that the company be wound up and liquidators were appointed.

[4] Consequently the Commission wrote to Mr Wise and advised him that a resolution to voluntarily wind up the company had been passed and a Liquidator had been appointed. Copies of the relevant ASIC notices were included. The letter referred Mr Wise to section 500(2) of the Corporations Act 2001 (the Corporations Act) and advised that it was the Commission’s preliminary view that his application cannot proceed further without leave of the Court being granted to do so. The letter invited Mr Wise to provide any submissions regarding this by 13 May 2015.

[5] No response has been received from Mr Wise.

Decision

[6] Relevant sections of the Corporations Act are set out below.

[7] 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.”

[8] 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;

(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 9.7, 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.”

[9] In the case of Silalahi v CMI Industrial (Forge) 1, the Commission considered the relevant authorities and found that an application made under section 394 of the Act falls within the meaning of “civil proceedings” in section 500(2) of the Corporations Act.

[10] Considering Section 58AA of the Corporations Act and the Full Bench decision of Smith 2, I am satisfied that this Commission is not a “Court” and consequently this Commission is not able to grant leave as prescribed in section 500(2) of the Corporations Act.

[11] As a result of the restriction in section 500(2) of the Corporations Act Mr Wise’s unfair dismissal remedy application cannot proceed any further in the Commission except by leave of the Court.

[12] Consequently this application is stayed until leave of the Court is granted.

[13] If Mr Wise wants to proceed further with his unfair dismissal remedy application he would need to apply to the Federal Court or the Supreme Court of a State or Territory seeking leave to continue with his application in the Fair Work Commission and that Court would decide whether or not this will be granted.

COMMISSIONER

 1   [2012] FWA 7275 at [11] - [16]

 2   Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137

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