Trevor Wilkinson v Redstar Transport Operations Pty Ltd

[2019] FWC 2891

[2019] FWC 2891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Wilkinson
v
Redstar Transport Operations Pty Ltd
(U2018/6008)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 MAY 2019

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

[1] On 8 June 2018, Mr Trevor Wilkinson made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his application, Mr Wilkinson named Redstar Transport Operations Pty Ltd (RTO) as the respondent entity. He said that RTO notified him of his dismissal on 21 May 2018 and that the dismissal took effect the same day.

[3] On 3 July 2018, RTO filed its Form F3 – Employer response to Unfair Dismissal Application, which noted its objection to Mr Wilkinson’s application on the basis that his dismissal was a case of genuine redundancy.

[4] A conciliation for the matter was held on 9 July 2018 but the parties were unable to settle. Directions were therefore issued ahead of a Jurisdiction (Genuine Redundancy) and Arbitration Conference/Hearing, which was scheduled for 24-26 September 2018.

[5] On 21 September 2018, Mr Wilkinson emailed the Commission seeking that the hearing be adjourned to enable further negotiations to settle the matter.

[6] On 24 September 2018, the Jurisdiction and Arbitration Conference/Hearing was cancelled after the Commission received confirmation from Mr Wilkinson the same morning, via telephone, that the matter had settled in principle. The cancellation Notice of Listing stated that a Notice of Discontinuance was to be filed in due course.

[7] On 4 and 8 January 2019, the Commission emailed Mr Wilkinson requesting that he file a Notice of Discontinuance. A telephone call was also attempted on 8 January 2019, but Mr Wilkinson was unable to be reached.

[8] On 10 January 2019, Mr Wilkinson emailed the Commission advising that RTO had gone into liquidation and further queried how this would affect his matter.

[9] On 11 January 2019, the Commission telephoned Mr Wilkinson who advised that after the matter settled in principle, RTO went into liquidation and he had been attempting to get into contact with the administrator.

[10] A review of the ASIC insolvency notices database showed that a general meeting of members held on 20 December 2018 resolved to wind up RTO and confirmed the appointment of PricewaterhouseCoopers as liquidator.

[11] On 29 January 2019, I caused correspondence to be sent to Mr Wilkinson, via email and post, advising him that the creditors of RTO had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Wilkinson to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view that his claim could not proceed unless he obtained leave of the Court.

[12] On 16 April 2019, correspondence was sent from my chambers to RTO’s legal representative, AiGroup, seeking confirmation that it had been placed in voluntary liquidation and an update on the status of the settlement. Mr Wilkinson was carbon copied into this correspondence.

[13] To date, RTO has not responded to the correspondence dated 16 April 2019, and Mr Wilkinson has not made any further contact with the Commission.

[14] 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.”

[15] 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.”

[16] Having regard to this provision and of 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.

[17] 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.

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

DEPUTY PRESIDENT

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 1 (2003) 142 IR 137.

 2   [2012] FWA 7275 at [11]-[16].