Tanya Wright v Tommy Guns Carindale Pty Ltd

[2020] FWC 947

[2020] FWC 947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tanya Wright
v
Tommy Guns Carindale Pty Ltd
(U2019/8298)

COMMISSIONER HUNT BRISBANE, 21 FEBRUARY 2020

Application for an unfair dismissal remedy.

Application for an unfair dismissal remedy – creditors’ voluntary liquidation – application stayed.

[1] On 26 July 2019, Ms Tanya Wright (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she has been unfairly dismissed by Tommy Guns Carindale Pty Ltd (the Respondent). The Applicant stated that her dismissal from the Respondent occurred on 25 July 2019.

[2] The Respondent raised two jurisdictional objections resting upon it being a small business employer at the time of the Applicant’s dismissal. On 23 December 2019, I issued a decision and order (Tanya Wright v Tommy Guns Carindale Pty Ltd[2019] FWC 8302) requiring the Respondent to produce time and wage records for all employees at both the Tommy Guns Carindale and Tommy Guns Chermside stores after finding that those entities were associated entities. The documents were ordered to be produced to the Commission by 10 January 2020, to which the Respondent complied with.

[3] On 31 January 2020, SV Partners Pty Ltd (the Liquidators) advised the Fair Work Commission (the Commission) that the Respondent had been placed into creditors’ voluntary liquidation. Documents attached to the correspondence sent by the Liquidators indicated that on 16 January 2020 the Respondent was placed into creditors’ voluntary liquidation, and Mr David Michael Stimpson had been appointed as Liquidator.

[4] Section 500(2) of the Corporations Act 2001 (the Corporations Act) provides:

“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.”

[5] 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.”

[6] On 6 February 2020, correspondence was sent to the Applicant advising that I had formed the preliminary view that her claim for unfair dismissal could not proceed in the Commission without leave of the Court because of s.500(2) of the Corporations Act. The Applicant was asked to advise my chambers by 7 February 2020 if she had a different view and wished for the matter to be set down for a jurisdictional hearing. On 6 February 2020, the Applicant wrote in reply to my chambers requesting clarification as to what stage of liquidation the Respondent was in, so she could make a decision about how to proceed with her claim.

[7] On 7 February 2020, correspondence was sent to the Applicant advising that the documents provided by SV Partners Pty Ltd on 31 January 2020 indicated that the Respondent had been placed into creditors’ voluntary liquidation, and therefore my preliminary view was unchanged.

[8] On 17 February 2020, the Applicant requested her unfair dismissal claim proceed and the matter was listed for a jurisdictional hearing on 21 February 2020.

[9] On 20 February 2020, the Liquidators sent submissions to my chambers stating their position that s.500(2) of the Corporations Act applies to this matter and the Applicant’s claim cannot proceed without obtaining leave of the Court due to the liquidation of the Respondent.

[10] The Applicant and a representative of the Liquidators, Mr Daniel Luckman, attended the hearing on 21 February 2020. During the hearing I advised that my view was that s.500(2) of the Corporations Act was enlivened in this matter. No further submissions were made by either participants of the hearing.

[11] In Smith & Ors v Trollop Silverwood & Beck Pty Ltd 1, the Full Bench held that the Commission is not a ‘Court’ and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act.

[12] Further, 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.

[13] Having regard to the provisions in s.500(2) of the Corporations Act and the authorities cited above, I am satisfied that this application cannot proceed any further in the Commission except by leave of the Court.

[14] Accordingly, the Applicant’s application is stayed until leave of the Court is granted.

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11] - [16].