Zivka Popovski v OneForce Group Australia Pty Ltd

[2016] FWC 4015

[2016] FWC 4015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zivka Popovski
v
OneForce Group Australia Pty Ltd
(U2013/9960)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

Application for relief from unfair dismissal - voluntary liquidation - application stayed.

[1] On 28 May 2013, Mrs Zivka Popovski made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mrs Popovski’s employment was terminated by OneForce Group Australia Pty Ltd on 10 May 2013.

[2] Conciliation was listed however could not take place. Directions were issued and the matter was listed for hearing.

[3] On 16 September 2013, Mrs Popovski complied with the directions and filed her submissions.

[4] On 7 October 2013, the Commission received correspondence advising that the OneForce was in liquidation. Correspondence was sent to the liquidators on 11 November 2013 asking them to provide the provisions under which the company was placed in liquidation and any submissions they wish to make in relation to the claim. I note that this letter was resent on 6 February 2015 as the liquidator had advised that it had not received this correspondence in 2013. The liquidator was also asked to provide a copy of the ASIC Form 505 to illustrate OneForce’s status.

[5] On 11 November 2013, the Commission wrote to Mrs Popovski and advised her that OneForce had appointed a liquidator. The letter referred her to s.500(2) of the Corporations Act 2001. Mrs Popovski was invited to be heard on the matter although, she did not respond to the Commission’s correspondence.

[6] On 6 February 2015, the liquidators provided the Commission with a copy of the ASIC Form 505 which confirmed that on 19 September 2013 the creditors of the company passed a special resolution to voluntarily wind up OneForce in accordance with s.491 of the Corporations Act 2001. It advised that the liquidator did not intend to put submissions before the Commission in relation to the unfair dismissal claim. Although it noted that OneForce was sold in May 2013 at which point the company ceased to trade and employ staff.

[7] S.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.”

[8] 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.”

[9] 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.

[10] 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.

[11] As noted earlier, Mrs Popovski’s application pursuant to s.394 of the Act was filed on 28 May 2013 and the passing of the resolution for winding up occurred on 19 September 2013.

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

[13] Therefore, Mrs Popovski’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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