Yu-Jiuan Lin v Sneakerboy Pty Ltd

[2022] FWC 2040

[2022] FWC 2040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Yu-Jiuan Lin
v

Sneakerboy Pty Ltd

(U2022/4758)

DEPUTY PRESIDENT MOLTONI BRISBANE, 2 AUGUST 2022

Application for an unfair dismissal remedy – liquidation – application stayed

1. Yu-Jiuan Lin (Applicant) was employed by Sneakerboy Pty Ltd (Respondent) from 19 June 2016 until she was dismissed on 5 April 2022.

1. On 26 April 2022, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. Despite repeated attempts to contact the Respondent via phone, email, and registered post, the Commission was unsuccessful in obtaining a response. Given the Applicant had advised the Respondent had closed it stores, my Chambers conducted an ASIC Search. Consequently, we became aware that an Administrator had been appointed on 2 July 2022 and the Respondent and a number of related entities of the Respondent were in Administration.

1. On 26 July 2022, MST Lawyers advised the Commission that the Respondent’s Administrator did not consent to the continuation of this proceeding pursuant to section 440D(1) of the Corporations Act 2001 (Cth) and requested that the Commission exercise its discretion to stay the proceedings.

1. On 28 July 2022, the Commission wrote to the Applicant bringing to her attention the correspondence of the Administrator and inviting her to be heard by 5pm on 29 July 2022.

1. On 1 August 2022, the Applicant wrote to the Commission taking up her opportunity to be heard. She raised a number of factors that can be relevantly summarised as follows:

·   The liquidation arose after the Applicant’s employment was terminated;

·   The Applicant is no longer an employee of the Respondent;

·   The Respondent must have known ahead of the Applicant’s termination that her employment was going to come to an end and should have let her know at such earlier time so that she could have taken actions to mitigate her losses;

·   The dismissal was unjust;

· The Respondent did not comply with its obligations under the Fair Work Act;

· The Respondent deliberately concealed the situation and intentionally failed to comply with the Applicant’s contract and the Fair Work Act;

·   Other stores owned by the Respondent did not close at the time the Applicant’s store closed; and

·   The unpaid entitlements issues are being dealt with separately through the Fair Work Ombudsman however the present unfair dismissal claim remains a separate matter for which the Applicant presses her claim for compensation.

1. I note that the underpayment claims are beyond the jurisdiction of the Commission.

1. On 29 July 2022, MST Lawyers provided the Commission with a copy of the ASIC Form 505, External Administration or Controllership - Appointment of an administrator or controller, which indicated that the creditors had resolved to voluntarily wind up the company on 2 July 2022.

1. I note that the Combined Notice of Appointment, appointing Mr Stephen Dixon as the Administrator, relates to the Respondent and 4 additional related entities:

·   Sneakerboy Pty Ltd

·   Sneakerboy Retail Pty Ltd

·   Sneakerboy IP Pty Ltd

·   Luxury Retail Treasury Pty Ltd

·   Luxury Retail Group Pty Ltd

1. 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.”

1. Section 58AA of the Corporations Act provides the following definition in relation to the meaning of “court” and “Court”:

“58AA 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 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

1. Having regard to this provision and of the Full Bench decision of Smith[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.

1. 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.

1. As noted earlier, the Applicant’s application pursuant to s.394 of the Act was filed on 26 April 2022 and the passing of the resolution for winding up occurred on 2 July 2022.

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

1. Therefore, the Applicant’s application under s.394 of the Act is stayed until leave of the Court is granted.

DEPUTY PRESIDENT

[1] Smith & Ors v Trollop Silverwood & Beck Pty Ltd (2003) 142 IR 137.

[2] [2012] FWA 7275 at [11] - [16].

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