Yu-Jiuan Lin v Sneakerboy Pty Ltd

[2024] FWC 3138

[2024] FWC 3138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yu-Jiuan Lin
v

Sneakerboy Pty Ltd

(U2022/4758)

DEPUTY PRESIDENT DOBSON BRISBANE, 13 NOVEMBER 2024

Application for an unfair dismissal remedy – voluntary liquidation – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. Ms Yu-Jiuan Lin was employed by Sneakerboy Pty Ltd until she was dismissed on 5 April 2022. On 26 April 2022, Ms Lin filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. The Respondent did not file any response to the Application, despite being directed to do so on a number of occasions. Further, Ms Lin’s proceedings were adjourned for a period of time at her request.

1. On 24 June 2022, a telephone conference was conducted, and the Respondent did not attend. Directions were issued for the filing of material for the arbitration of the matter. Ms Lin failed to comply with these directions and sought a late extension to file her material.

1. On 6 July 2022, the Commission noted that where a Respondent in an unfair dismissal matter is in liquidation, the jurisdiction of the Fair Work Commission to hear a matter will depend on whether the liquidation event is voluntary in which case proceedings cannot proceed by virtue of s.500 of the Corporations Act 2001 (Cth) and where the liquidation event is a result of a creditor bringing a windup application then a matter can proceed.

1. Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:

“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.”

1. On 8 July 2024 the Applicant filed submissions and on 13 July 2022, my chambers sought that the Applicant conduct an ASICs search on the Respondent entity.

1. On 19 July 2024, my Chambers contacted Hamilton Murphy (the external administrator) to seek consent to the continuation of the Commission’s proceedings pursuant to section 440D(1) of the Corporations Act 2001. On 26 July 2022, a lawyer representing the administrator contacted the Commission to inform that they did not consent to the continuation of the proceeding and sought a stay of the proceedings. On 27 July 2022, the Administrator provided the grounds upon which they requested a stay of the proceedings. The parties were directed to file further material, and upon consideration of this material I issued a decision to stay the matter[1].

1. Numerous periodic searches were conducted to monitor when the Respondent would be deregistered from 25 August 2022 to 14 March 2023. On 14 March 2023, my Chambers sought that the parties provide an update on the matter. On 22 March 2023, the Administrator provided that the company would be deregistered but they were unable to provide a timeframe. That same day, my Chambers contacted the Applicant to advise that if she did not discontinue the application that the Commission would likely be required to issue a decision to dismiss the matter upon the deregistration of the Respondent. On 27 March 2023, the Applicant confirmed she wished to wait for the deregistration.

1. Periodic searches of the Respondent continued until 8 September 2023, at which point I sought an updated response from the Administrator. By 5 February 2024, the Administrator had not responded, and I directed a response to be provided by no later than 4:00pm on 12 February 2024. On 7 February 2024, the Administrator contacted my chambers by telephone to inform that they would provide an update and were informed that they must do so in writing. When no response was received, I issued orders to attend a hearing to the Administrators. On 13 February 2024, the Administrators provided a response regarding the winding up of the Respondent and requested that the orders to attend be revoked. I determined to revoke the orders to attend on the basis that the Administrator had provided the relevant information.

1. On 17 September 2024, I sought another update from the Administrator, to be provided by no later than 19 September 2024. By 26 September 2024, the Administrator had not provided this update, and I issued orders for the production of documents which the Administrator failed to comply with. On 1 October 2024, the Administrator requested to be contacted by telephone and provided a written response on 2 October 2024. This written response provided that the Respondent was no longer trading. On 29 October 2024, my Chambers wrote to the administrator seeking that they confirm there would be no possibility that the Company would recommence trading and that they should provide this confirmation by no later than 4:00pm AEST on 30 October 2024. They failed to provide this information.

1. On 12 November 2024, my Chambers wrote to the administrator to indicate that failing a response from them, I would issue formal orders to produce documents. That same day, the Administrator confirmed in writing that there would be no possibility that the Company would recommence trading.

1. Section 587 of the Fair Work Act 2009 provides:

“587      Dismissing applications

(1)       Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or

(b)       the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Since 22 March 2023 Ms Lin has been on notice of a significant obstacle that most likely prevents her from continuing her case – being the operation s.500(2) of the Corporations Act 2001 (Cth).

1. In these circumstances, noting the considerable time that this matter has been in liquidation and the advice that the Respondent will not commence trading again, I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Lin’s application.

1. I order accordingly.

DEPUTY PRESIDENT

[1] [2022] FWC 2040

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