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[2013] FWC 2704
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Kylie Bruce
v
Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera (Fingal Glen)
(U2013/221)
SENIOR DEPUTY PRESIDENT
O’CALLAGHAN ADELAIDE, 2 MAY 2013
Application for unfair dismissal remedy - respondent in liquidation - distinction between
voluntary winding up of a company and other winding up arrangements.
[1] On 29 January 2013 Ms Bruce lodged an unfair dismissal application pursuant to s.394
of the Fair Work Act 2009 (the FW Act), relative to the termination of her employment with
the Trustee for the Adelaide Riviera Trust T/A Adelaide Riviera.
[2] The Employer’s Response (Form F3) asserted that the correct name for the respondent
was Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera (Fingal Glen). There is no
suggestion that the name listed on the application is anything other than an error of an
administrative nature or that it was intended to refer to a different entity. Accordingly, I have
allowed a correction to the application so as to identify the correct name of the respondent.
The Commission’s file in this matter has been amended to reflect this.
[3] Conciliation with respect to this application did not occur. The application was
referred to me for determination. The respondent did not participate in a Directions
Conference on 7 March 2013. The application was subsequently listed for hearing.
[4] On 12 March 2013 Mr Dean, of United Voice, representing the applicant advised the
Commission that he understood that the respondent had been wound up by Order of the
Federal Court and that a Mr White had been appointed as liquidator. The following
correspondence was subsequently received from Mr White.
“....
I confirm I was appointed Official Liquidator of the above company, by Order of the
Federal Court of Australia, on 8 March 2013. A copy of the Court Order is enclosed
for your attention.
Further, I was unaware that an application was before the Fair Work Commission.
...”
AUSTRALIA FAIR WORK COMMISSION
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[5] Attached to this advice was the winding up order of 8 March 2013.
[6] The application was listed for a further directions conference but the liquidator did not
participate. On 14 March 2013 I issued further directions in the following terms:
“[1] Ms Bruce’s unfair dismissal application has been the subject of a further
telephone directions conference with me on 13 March 2013. Mr Dean of United Voice
represented Ms Bruce. Written advice from Mr CP White, the Liquidator of Fingal
Glen Pty Ltd t/as Adelaide Riviera Comfort Hotel, was provided to Mr Dean prior to
this conference.
[2] The listing of this matter for 28 March 2013 has been cancelled and a Notice to
this effect is attached.
[3] Any further listing of this matter will depend on advice provided to me by Mr
Dean, or possibly, Mr White. Mr Dean has undertaken to provide written submissions
to both the Commission and to Mr White which address whether or not the matter
should proceed and, if so, who should be considered to be the respondent. This
material is to be provided by 27 March 2013.
[4] Leave is reserved for Mr Dean, or, for that matter, Mr White, to request a
further Directions Conference.
[5] Depending on the material provided to me, the parties will be advised of any
further proceedings relative to this application.”
[7] Mr Dean provided written submissions on 18 March 2013 to the effect that the
application could and should proceed to arbitration.
[8] A further opportunity for submissions was provided by way of directions issued on 2
April 2013. The parties were advised that, absent any further submissions, I would consider
the matter on the material before me. Nothing further was received.
[9] Ms Bruce refers to three provisions of the Corporations Act 2001 and asserts that none
of these provisions prevent the application from proceeding. I have considered each of these
provisions and the Corporations Act generally.
Section 440D of the Corporations Act
[10] This section states:
“Stay of proceedings
(1) During the administration of a company, a proceeding in a court against
the company or in relation to any of its property cannot be begun or proceeded
with, except:
(a) with the administrator's written consent; or
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(b) with the leave of the Court and in accordance with such terms (if any) as
the Court imposes.
(2) Subsection (1) does not apply to:
(a) a criminal proceeding; or
(b) a prescribed proceeding.”
[11] The respondent is not in administration and has been wound up with a liquidator
appointed. I have concluded that this section of the Corporations Act does not apply in these
circumstances.
Section 471B of the Corporations Act
[12] This section states:
“Stay of proceedings and suspension of enforcement process
While a company is being wound up in insolvency or by the Court, or a
provisional liquidator of a company is acting, a person cannot begin or proceed
with:
(a) a proceeding in a court against the company or in relation to property of the
company; or
(b) enforcement process in relation to such property;
except with the leave of the Court and in accordance with such terms (if any) as the
Court imposes.”
[13] This section governs general arrangements relative to companies in liquidation.
[14] In Smith and others v Trolloppe Silverwood & Beck Pty Ltd (In liquidation)1 (Smith) a
Full Bench of the Australian Industrial Relations Commission (AIRC) concluded that the
AIRC was not a court for the purposes of s.473B and, as such, this section did not represent
an impediment to the exercise of the unfair dismissal jurisdiction.
Section 500 of the Corporations Act
[15] This section states:
“Execution and civil proceedings
(1) Any attachment, sequestration, distress or execution put in force against
the property of the company after the passing of the resolution for voluntary
winding up is void.
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(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.
(3) The Court may require any contributory, trustee, receiver, banker, agent,
officer or employee of the company to pay, deliver, convey, surrender or
transfer forthwith or within such time as the Court directs to the liquidator any
money, property of the company or books in his, her or its hands to which the
company is prima facie entitled.”
[16] This section deals with circumstances described in Part 5.5 of the Corporations Act
relative to voluntary winding up of companies. The Corporations Act establishes voluntary
winding up as an alternative process to an action pursued under s.459, by a creditor. Part 5.5
sets out arrangements applicable to these particular circumstances.
[17] The operation and effect of this section was not addressed by the Bench in Smith.
Indeed, it appears that section was not relevant to the circumstances which required
consideration in Smith. However, McKenna C considered this section at some length in
Lawler v ABC Developmental Learning Centres Pty Ltd (Receivers and Managers Appointed)
(Administrators Appointed).2 In that decision, the Commissioner dealt with a matter where a
respondent had passed a resolution for voluntary winding up. She concluded that:
“[22] This application comprises, pursuant to s.500(2) of the Act, an action or other
civil proceeding which may not be proceeded with or commenced against the
respondent except by leave of the Court and subject to such terms as the Court
imposes. Thus, leave of the relevant Court needs to be obtained if the applicant wishes
to proceed with this application before Fair Work Australia. Such leave may not,
despite the applicant’s submissions, be granted by Fair Work Australia as the Tribunal
is not a “Court”, as defined.”
[18] I think that conclusion is correct. However because the Australian Securities
Investment Commission records indicate that Fingal Glen was wound up by the Court
following an application made under s.465 of the Corporations Act. Part 5.6 has no effect.
[19] Part 5.4 and 5.6 of the Corporations Act deal with winding up generally. These Parts
set out the powers and obligations of liquidators in specified circumstances. Those powers of
a liquidator are generally directed at concluding the affairs of the company. There is nothing
in Part 5.6 of the Corporations Act which overrides the general provisions set out in s.471.
[20] Accordingly, in this particular situation, I am required to follow the Full Bench
position in Smith and allow the application to proceed. In that matter the Full Bench rejected
the application of a purposive approach. I am concerned however that this conclusion raises
significant practical difficulties. It is conceivable that the liquidator may need to allocate
resources to defending the action in a manner which is difficult to reconcile with the specified
liquidator functions. Further, it is difficult to see how the respondent will have the capacity to
provide evidence in support of its position, given both its standing and that of its
management. It seems to me curious that under this approach an appeal may be made to a Full
Bench of the Commission but any further appeal rights must be limited by s.471B. Finally, it
is difficult, but not impossible to conceive how reinstatement could be ordered and how any
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amount that might be awarded in lieu of reinstatement would become anything other than
simply another liability for consideration by the liquidator.
[21] Those practical difficulties may mean that Ms Bruce decides against pursuing the
matter further.
[22] However, until or unless I receive advice to this effect, the matter will proceed. It will
be listed for a directions hearing on 10 May 2013. In the event that the respondent is not
represented at this hearing, the parties should expect that I will issue directions requiring the
provision of written submissions and material.
Printed by authority of the Commonwealth Government Printer
Price code C, PR536218
1 PR940508
2 [2010] FWA 7679
OF FAIR WORK GOHIS 1 AUSTRALIA THE SEAL SENIOR DEPUTY PRESIDENT
