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

Printed by authority of the Commonwealth Government Printer

The case of Steven Wise v Has Group (WA) Pty Ltd arose from the termination of Mr. Wise's employment by Has Group, a company subsequently placed in liquidation. Mr. Wise sought compensation for his dismissal, claiming it was unjust and occurred under circumstances that entitled him to further remuneration. The matter was brought before the Federal Circuit Court of Australia, which had to determine the validity of the termination and the extent of any compensation owed to Mr. Wise.

The court faced several key legal issues. The primary question was whether Mr. Wise's termination was justified and whether the company's subsequent liquidation affected the enforceability of any employment agreements. Additionally, the court needed to assess whether Mr. Wise was owed additional compensation under the Fair Work Act 2009 and whether the liquidator of Has Group had any liability for those claims. The interpretation of the relevant employment laws and the effect of the company's liquidation on Mr. Wise's rights were central to the decision.

In reaching its decision, the court examined the terms of Mr. Wise's employment contract and the circumstances surrounding his dismissal. It found that the termination was justified and that the company's liquidation did not negate the validity of the termination decision. The court determined that Mr. Wise was not entitled to additional compensation beyond what had been provided under the Fair Work Act. Given the findings, the court held that the liquidator of Has Group was not liable for any further payments to Mr. Wise.

As a result of the court's decision, Mr. Wise's claim for additional compensation was dismissed. The court ordered that the amounts already paid to Mr. Wise in accordance with the Fair Work Act were sufficient, and no further payments were required from the liquidator of Has Group.

Steven Wise v Has Group (WA) Pty Ltd

DECISION

Decision

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