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Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Isabel De Ramirez
v
Inner West Skills Centre Inc t/as Inner West Skills Centre
(U2015/3754)
DEPUTY PRESIDENT SAMS SYDNEY, 25 JUNE 2015
Application for relief from unfair dismissal - respondent in voluntary liquidation – impact of
Corporations Act 2001 - application stayed pending leave of the Court being granted.
[1] On 6 March 2015, Ms Isabel De Ramirez (the ‘applicant’) lodged an application for a
remedy from unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The
applicant’s employment was terminated by Inner West Skills Centre Incorporated t/as Inner
West Skills Centre (the ‘respondent’) on 13 February 2015. While the reasons for the
applicant’s dismissal are not relevant for the purposes of this decision, in summary, the
applicant was dismissed for alleged performance related issues. She strongly contests the
allegations against her.
[2] A telephone conciliation was conducted by a Staff Conciliator of the Commission on
31 March 2015, but the matter was not able to be settled.
[3] On 4 June 2015, the Commission received correspondence from BRI Ferrier Pty Ltd
advising that the respondent was placed into Voluntary Administration on 20 April 2015 and
then into voluntary liquidation on 22 May 2015.
[4] On 9 May 2015, the Commission wrote to the applicant and advised her that creditors
had passed a resolution to voluntarily wind up the respondent and that they had appointed a
liquidator for that purpose. The correspondence referred the applicant to s 500(2) of the
Corporations Act 2001 (the ‘Corporations Act’). The applicant was invited to be heard in
[2015] FWC 4263
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 4263
2
relation to the Commission’s jurisdiction to further deal with the matter. The applicant replied
that she did wish to be heard and the matter was referred to me for hearing.
[5] Section 500(2) of the Corporations Act is expressed 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.’
[6] Section 58AA of the Corporations Act provides the following definition in relation to
the meaning of ‘court’ and ‘Court’:
‘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 9.6A, be brought in any court.’
[7] Having regard to ss 58AA and 500(2) of the Corporations Act and of the Full Bench
decision in Smith v Trollope Silverwood & Beck Pty Ltd (2003) 142 IR 137, I am satisfied that
the Commission is not a ‘Court’ and is therefore unable to grant leave, as described in s
500(2) of the Corporations Act.
[8] At paras [11]-[16] of Silalahi v CMI Industrial (Forge) [2012] FWA 7275,
Commissioner Jones (as she then was) considered the 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. There is no doubt as to this conclusion.
[2015] FWC 4263
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[9] At a jurisdictional of the hearing of the matter on 24 June 2015, the applicant was
represented, with permission, by Ms A Gibbons of Counsel. After some exchanges between
Ms Gibbons and the Commission, Ms Gibbons advised that the applicant intended to seek
leave from a Court in order for her unfair dismissal application to proceed before the
Commission.
[10] For the aforementioned reasons, I am satisfied that this application cannot proceed any
further before the Commission, except by leave of the Court. The application, pursuant to s
394 of the Act, is stayed until leave of the Court is granted or the Commission is otherwise
advised that the application is discontinued.
DEPUTY PRESIDENT
Appearances:
Ms A Gibbons of Counsel for the applicant.
No appearance for the respondent.
Hearing details:
2015:
Sydney
24 June.
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