Thanh Q Hoang v Electrodata Recorders Pty Ltd

[2014] FWC 1279

[2014] FWC 1279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thanh Q Hoang
v
Electrodata Recorders Pty Ltd
(U2013/14795)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 FEBRUARY 2014

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 15 November 2013, Mr Thang Q Hoang made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Hoang’s employment was terminated by Electrodata Recorders Pty Ltd (Electrodata) on 25 October 2013.

[2] Conciliation was listed however, could not take place as Electrodata was not able to participate.

[3] On 18 December 2013, the Fair Work Commission (the Commission) received correspondence from Woodgate & Co. advising that the Electrodata was placed in voluntary liquidation on 13 December 2013. In their correspondence, Woodgate & Co. objected to Mr Hoang’s application relying on of s.500(2) of the Corporations Act 2001 (the Corporations Act) and the decision in Lawler v ABC Developmental Learning Centres (Receivers and Managers Appointed) (Administrators Appointed). 1

[4] On 9 January 2014, the Commission conducted a search of the ASIC insolvency database and obtained a copy of the Notice of Deemed Special Resolution to wind up a company which confirmed the advice of Woodgate & Co.

[5] 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.

[6] 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.”

[7] Having regard to this provision and of the Full Bench decision of Smith 2, 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.

[8] In Silalahi v CMI Industrial (Forge) 3, 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.

[9] On 10 January 2014, correspondence was sent to Mr Hoang which advised that his application for relief from unfair dismissal cannot proceed unless he obtains leave of the Court. Mr Hoang was given the opportunity to raise his concerns at a jurisdictional hearing if he wanted to be heard on the matter. In response to the Commission’s correspondence, Mr Hoang advised the Commission that he wanted to obtain legal advice. The Commission allowed Mr Hoang a further period of time, until 7 February 2014, to obtain this advice.

[10] No further correspondence has been received from Mr Hoang.

[11] As noted earlier, Mr Hoang’s application pursuant to s.394 of the Act was lodged on 15 November 2013 and the passing of the resolution for winding up occurred on 13 November 2013.

[12] Taking into account the provisions set out in s.500(2) of the Corporations Act, I am satisfied that Mr Hoang’s application cannot proceed any further in the Commission except by leave of the Court.

[13] Therefore, Mr Hoang’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

 1   [2010] FWA 7679, PR502363.

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

 3   [2012] FWA 7275 at [11] - [16]

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