1
Fair Work Act 2009
s.394—Unfair dismissal
Malimage Perera and Dilrukshi Rose
v
Blend and Pack Pty Ltd
(U2023/8626 and U2023/8627)
DEPUTY PRESIDENT COLMAN MELBOURNE, 16 NOVEMBER 2023
Unfair dismissal application – respondent in liquidation – s 500(2) of the Corporations Act
[1] This decision concerns two related applications made by Ms Malimage Perera and Ms
Dilrukshi Rose (applicants) under s 394 of the Fair Work Act 2009 (FW Act). The applicants
contend that they were unfairly dismissed from their employment with Blend and Pack Pty Ltd
(respondent). On 24 October 2023, the Commission was advised that the respondent was in
voluntary administration. It did not contest the applications.
[2] Ms Perera was employed by the respondent as an assistant quality controller. Her
employment began on 24 October 2012. Ms Rose was employed as a process worker and
commenced her employment on 16 November 2011. On 18 July 2023, the applicants received
a letter from the respondent’s head of human resources terminating their employment on five
weeks’ notice. It did not refer to any reason for dismissal. The applicants believed that they had
been dismissed for reason of redundancy. On termination, they were paid out their accrued
annual leave and long service leave, but they did not receive any redundancy payments. The
applicants contended that their dismissals were unfair because they were not given a reason for
termination. They said that the way in which they were dismissed after lengthy periods of
service was unfair, and that the unfairness was exacerbated by the fact that they received no
redundancy pay.
[3] The respondent did not participate in the proceedings. On 24 October 2023, the
administrators advised the Commission that they did not propose to defend the unfair dismissal
applications, and confirmed that the company was not in liquidation. However, at the hearing
on 15 November 2023, the applicants produced a letter from the administrators dated 8
November 2023, stating that a resolution of creditors had determined to place the company into
voluntary liquidation. I advised the applicants that in light of this letter, they could not continue
their unfair dismissal claims without a court order allowing them to do so. In this regard, s
500(2) of the Corporations Act 2001 provides that, after the passing of a 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.’ It is
clear that the applicants’ unfair dismissal claims are actions or civil proceedings for the
purposes of s 500(2). The Commission is not a court and cannot grant leave for the proceedings
[2023] FWC 3001
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 3001
2
to continue. I asked the applicants whether they intended to make an application to a court for
an order allowing them to proceed with their unfair dismissal claims. They said that they did
not intend to do so. I advised the applicants that in these circumstances I proposed to dismiss
their applications because they could not continue without a court order, and there was no
prospect of an order being granted if the applicants had no intention of seeking one. In my view
the applications have no reasonable prospects of success and it is appropriate to dismiss them
under s 587(1)(c) of the FW Act.
[4] Had the company not been placed into liquidation and the applications had proceeded,
I would have concluded that the applicants’ dismissal by the respondent was unfair. Based on
the material before the Commission, there is no indication that there was a valid reason for
dismissal related to the applicants’ capacity or conduct within the meaning of s 387(a). If it was
the case that the reason for the applicants’ dismissal was redundancy (a reason not related to
capacity or conduct and therefore to be considered under s 387(h)), then the respondents ought
to have advised the applicants of this and consulted with them in relation to the redundancy.
The applicants were treated very poorly by the respondents after many years of service.
[5] Finally, in relation to the question of redundancy entitlements, the applicants are aware
that, given the respondent is in liquidation, they may now lodge a claim under the Fair
Entitlements Guarantee scheme.
[6] The applications are dismissed.
DEPUTY PRESIDENT
Hearing details:
2023
Melbourne
15 November
Printed by authority of the Commonwealth Government Printer
PR768335
WORK COMMISSION THE SEAL OF THE F
