DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyson Clack
v
ADS Painting Pty Ltd
(U2019/6428)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 28 AUGUST 2019

Application for an unfair dismissal remedy – respondent in liquidation – applicant not pursue unfair dismissal case or seek leave from a court to do so – application dismissed.

[1] On 12 June 2019, Mr Tyson Clack commenced unfair dismissal proceedings in the Fair Work Commission (Commission) against his former employer, ADS Painting Pty Ltd (ADS).

[2] On 4 July 2019, Mr J. Shute, Liquidator of Shaw Gidley, informed the Commission in writing that he was appointed liquidator of ADS by a resolution of its members at a meeting held on 1 July 2019. A copy of that correspondence was provided to Mr Clack.

[3] ASIC documentation confirms that Mr Shute was appointed as a liquidator of ADS on 1 July 2019, on the basis of a creditors’ voluntary winding up.

[4] On 2 August 2019, Mr Clack participated in a directions hearing, by telephone, before the Commission. At that directions hearing, Mr Clack was informed that he had a period of seven days to decide which of the following three options he would like to take:

1. Discontinue his unfair dismissal claim against ADS;

2. Make an application to a superior court such as the Supreme Court of New South Wales for leave to be able to continue his unfair dismissal claim against ADS in the Commission; or

3. Make submissions as to why he should be permitted to continue his unfair dismissal claim against ADS in the Commission without obtaining leave from a superior court such as the Supreme Court of New South Wales.

[5] These options were confirmed to Mr Clack in an email sent from my chambers at 12:24pm on 2 August 2019. Mr Clack was asked to inform my chambers as to how he wished to proceed by 4pm on 9 August 2019. No communication was received from Mr Clack by 4pm on 9 August 2019.

[6] On 13 August 2019, my Associate left a message for Mr Clack to return his call or respond to the email sent to him on 2 August 2019. Mr Clack did neither.

[7] On 19 August 2019, another email was sent to Mr Clack from my chambers, informing him that he had until 4pm on 21 August 2019 to respond to the matters raised in the 2 August 2019 email, and that if we did not hear from him by that time, his unfair dismissal application against ADS would be dismissed without further notice to him. Mr Clack did not respond to that email.

[8] We have not had any communication from Mr Clack since the directions hearing, by telephone, on 2 August 2019. Mr Clack has not taken any steps since the directions hearing on 2 August 2019 to prosecute his unfair dismissal claim against ADS, nor has he notified the Commission that he has sought, or intends to seek, leave from a court to continue his unfair dismissal claim against ADS in the Commission.

[9] For the reasons set out above, I have decided to exercise my discretion pursuant to s 587(1) of the Fair Work Act 2009 (Cth) to dismiss Mr Clack’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Tyson Clack v ADS Painting Pty Ltd, the applicant sought an unfair dismissal remedy after being terminated by the respondent. The dispute was brought to the attention of the court due to the respondent's liquidation, which complicated the proceedings. The applicant did not pursue the unfair dismissal case nor did they seek leave from a court to do so. The primary focus of the case was whether the application could proceed given the respondent's insolvency and the applicant's inaction.

The legal issues that the court was required to address included the procedural requirements for an unfair dismissal application when the respondent is in liquidation and the circumstances under which an applicant may be excused from pursuing their case. The court had to consider the relevant provisions of the Fair Work Act 2009, which governs unfair dismissal claims, and determine whether the application could still proceed despite the respondent's liquidation and the applicant's failure to take further action.

The court determined that the application could not proceed as the applicant did not pursue their unfair dismissal claim and did not seek leave from a court to do so. The court emphasised the importance of the applicant taking the necessary steps to progress the case, particularly in light of the respondent's liquidation. Given the circumstances, the court dismissed the application for an unfair dismissal remedy.

No further orders were made by the court as the application was dismissed on the grounds that the applicant did not pursue their case and did not seek leave to do so.

Tyson Clack v ADS Painting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established