Wulantuya Fnu v Australian Allied Early Intervention Pty Ltd

[2024] FWC 1982

[2024] FWC 1982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wulantuya Fnu
v

Australian Allied Early Intervention Pty Ltd

(U2024/5927)

DEPUTY PRESIDENT BELL MELBOURNE, 26 JULY 2024

Application for an unfair dismissal remedy – respondent ceased to exist upon deregistration - application dismissed.

1. On 24 May 2024, Ms Wulantuya Fnu made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (the Act). The application initially named an individual as the employer but it was subsequently acknowledged that the correct employer was the current respondent, Australian Allied Early Intervention Pty Ltd (ACN 652 585 736).

1. That application was out of time but, following a hearing conducted on 15 July 2024, I was satisfied that “exceptional circumstances” existed for the late application and made an order[1] for an extension of time, with reasons given orally.

1. At that hearing, and as shortly after was made clear, the putative representative of the respondent stated that the respondent had been deregistered. A search of the Australian Securities & Investment Commission (ASIC) register shows that the respondent was deregistered on 30 June 2024.

1. Deregistration of a company is akin to corporate death or, more correctly and in the language of s 601AD(1) of the Corporations Act 2001 (Cth), a company ceases to exist on deregistration. Upon a court becoming aware that the plaintiff or applicant is a non-existent person, it will not allow the action to proceed.[2] The same position necessarily applies in the case of a respondent.

1. On 15 July 2024, I wrote via chambers to the parties about the deregistration and advised that no proceedings can continue against a deregistered company. Copies of example decisions of the Fair Work Commission were attached to the email, as was a link to a relevant section of the ASIC website containing information about deregistration. On that basis, I indicated that Ms Fnu might prefer to discontinue her application (instead of it being dismissed) and, if this was the case, she was asked to respond by 17 July 2024. Through subsequent correspondence, I stated that if Ms Fnu did not discontinue her application by close of business Wednesday 24 July 2024, I would dismiss her application as it has no reasonable prospect of success.

1. Ms Fnu has not discontinued her application. The respondent remains deregistered.

1. In the circumstances, I am satisfied that Ms Fnu’s application has no reasonable prospects of success. Consistent with numerous earlier decisions of members of the Commission,[3] I will exercise my power under s 587(1)(c) of the Act to dismiss the application. An Order[4] giving effect to this decision will be issued today.

1. I have considered whether I ought to revoke[5] my earlier decision granting an extension of time on the basis that it should never have been made in respect of a non-existent respondent but, in circumstances where the matter has been dismissed, I do not consider this is necessary.

DEPUTY PRESIDENT

[1] PR776958

[2] Re Morton; Ex parte Mitchell Products Pty Ltd; Morton v Vouris (1996) 21 ACSR 497.

[3] For example, Carpenter v Zesta Greek Restaurant Pty Ltd [2015] FWC 7908 (Gooley DP); Tyler v Kangaroo Scaffolding (AUS) Pty Ltd [2017] FWC 6027 (Wilson C), Kraeft v SN King Pty Ltd[2019] FWC 5047 (Clancy DP); Ennis v ArchiApps Pty Ltd[2023] FWC 11 (Bissett C).

[4] PR777547.

[5] Fair Work Act, s 603.

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