Trethewey v Total Work Solutions

[2020] FWC 156

[2010] FWC 156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Trethewey
v
Total Work Solutions Pty. Ltd. T/A Total Work Solutions
(U2019/10211)

COMMISSIONER BISSETT MELBOURNE, 13 JANUARY 2020

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

[1] On 12 September 2019 Mr Craig Trethewey (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant’s employment was terminated by Total Work Solutions Pty. Ltd. T/A Total Work Solutions (Respondent) on 10 September 2019.

[2] The matter was listed for conciliation on 15 October 2019 but was cancelled by the Commission due to operational reasons. The matter was relisted for conciliation on 11 November 2019.

[3] On 6 November 2019 the Commission received email correspondence from the Respondent advising that “[d]ue to unrelated circumstances the company has had [to] close and is in the process of appointing an Administrator for the liquidation of Total Work Solutions Pty ltd. Unfortunately a sequence of problems have brought about a cash flow crisis and forced the immediate closure of the business. I will be passing all the information to the Administrators for them to take over management of Mr Trethewey’s claim that he was dismissed.” As a result the conciliation could not proceed and was cancelled. The matter was then referred for further case management.

[4] A review of the ASIC insolvency notices database confirms that on 11 December 2019 at a general meeting of the members of company, a resolution was passed for the company to be wound up voluntarily. It also confirmed the appointment of Mr Adrian Hunter and Robyn Erskine of Brooke Bird as Liquidator for the Respondent.

[5] On 7 January 2020 the Commission sent correspondence to the Applicant’s nominated email address advising that the Respondent had gone into liquidation and that on 11 December 2019 the Respondent had passed a resolution to voluntarily wind up the company and had a appointed a liquidator. The correspondence referred the Applicant to s.500(2) of the Corporations Act 2001 (Corporations Act) and stated that it was the Commission’s view that his claim cannot proceed unless he obtained leave from the Court.

[6] On 7 January 2020 the Applicant wrote to the Commission advising as follows:

I would like this issue raised to your commission member and I would like regular updates…

They are still operating in WA under a slightly different name.

[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”:

(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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.

[9] Having regard to this provision and the Full Bench decision of Smith v Trollope Silverwood & Beck Pty Ltd, 1 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.

[10] In Silalahi v CMI Industrial (Forge), 2 Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the FW Act falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act.

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

COMMISSIONER

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].