Steven Withers v Innovative Mining Solutions Pty Ltd

[2014] FWC 5186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Withers
v
Innovative Mining Solutions Pty Ltd
(U2012/14703)

COMMISSIONER WILSON

MELBOURNE, 31 JULY 2014

Application for relief from unfair dismissal - Respondent deregistered - no reasonable prospects of success - application dismissed.

[1] On 28 November 2013, Deputy President Gooley issued a decision 1 in relation to Mr Withers’ application for remedy from unfair dismissal.

[2] The Deputy President’s decision stayed Mr Withers’ application on the basis that Innovative Mining Solutions Pty Ltd (IMS) was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, Mr Withers’ application was not able to proceed except with leave of the Court. 2

[3] An ASIC insolvency search was conducted on 21 July 2014 and disclosed that IMS was deregistered on 8 July 2014.

[4] On 23 July 2014, the Fair Work Commission (the Commission) wrote to Mr Withers and advised him of IMS’ deregistration. The Commission further advised that no proceeding can continue against a company which is deregistered. Mr Withers’ was given an opportunity to file a notice of discontinuance. He did not respond to the correspondence or file a notice of discontinuance.

[5] Taking into account the circumstances of this matter, I am satisfied that Mr Withers’ application has no reasonable prospects of success. Therefore, the application is dismissed pursuant to s.587(1)(c) of the Fair Work Act 2009.

COMMISSIONER

1 [2013] FWC 9367.

2 Ibid at [12].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Steven Withers, the applicant, sought relief from an unfair dismissal against Innovative Mining Solutions Pty Ltd, the respondent. The dispute centred on the applicant's termination of employment and his claim that the dismissal was unfair under the Fair Work Act 2009. The case was heard in the Fair Work Commission. The respondent, however, had been deregistered and was not participating in the proceedings.

The central legal issue was whether the Commission had jurisdiction to hear the applicant's claim for unfair dismissal relief given that the respondent company had been deregistered. The court had to determine if the deregistration of the respondent affected the Commission's jurisdiction and whether the applicant had reasonable prospects of success in the case. Additionally, the court needed to assess if there were any other grounds to grant the applicant relief despite the respondent's deregistration.

The Commission held that the deregistration of the respondent company significantly impacted its ability to participate in the proceedings, thus affecting its capacity to defend the claim. Given the absence of the respondent, the court found that the applicant did not have reasonable prospects of success. The deregistration resulted in a substantial impediment to the applicant's ability to pursue his claim effectively. Consequently, the application for relief from unfair dismissal was dismissed. The Commission ruled that the deregistration of the respondent and the lack of reasonable prospects of success precluded the need for further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established