1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Sa Loi and Others v Vermile Pty. Limited (U2024/6704; U2024/6328; U2024/6687; U2024/6702; U2024/6707; and U2024/6798) DEPUTY PRESIDENT ROBERTS SYDNEY, 13 SEPTEMBER 2024 Application for an unfair dismissal remedy. [1] This decision concerns six applications for unfair dismissal remedies under Part 3-2 of the Fair Work Act 2009 (Act) by the following applicants: (i) Mr. Sa Loi; (ii) Mr. James Alo; (iii) Mr. Donnamaree Ngatai; (iv) Mr. Sa Williams; (v) Ms. Kelly Piua; (vi) Mr. Garth McBurney. [2] The respondent to each application is Vermile Pty Ltd (in liquidation) (Respondent). The Applicants, with the exception of Mr. McBurney, alleged that the termination of their employment took effect on 23 May 2024. Mr. McBurney said the termination of his employment took effect on 13 June 2024. [3] By correspondence dated 5 August 2024 from the firm Cor Cordis, the Commission was advised that on 20 June 2024, Mr. Sam Kaso, Ms Catherine Margaret Conneely and Mr. Daniel Juratowitch from that firm were appointed as voluntary administrators of the Respondent. The correspondence also advised that Messrs Mathew Blum, Luke Andrews and Duncan Clubb of BDO (Receivers) were appointed receivers and managers of the company on 21 June 2024 and that on 25 July 2024, following a second meeting of the Respondent’s creditors, Messrs Kaso and Juratowitch and Ms. Conneely (Liquidators) were also appointed liquidators of the Respondent. [4] The Liquidators advised that they did not support or oppose the unfair dismissal applications and that the Receivers were in control of the Respondent. They said that given the Respondent was in liquidation, all proceedings against the company were stayed pursuant to s.471B of the Corporations Act 2001 (Cth) (the Corporations Act) and that given the Respondent was without funds and having regard to s.545(1) of the Corporations Act, they were [2024] FWC 2424 DECISION [2024] FWC 2424 2 not obliged to take any steps or incur any expenses unless there was sufficient funds available to meet those expenses. [5] The matters were first listed before me on 30 July 2024. None of the Applicants appeared on that date. The matters were then relisted on 8 August 2024. Three of the Applicants appeared. Those parties were advised that the Respondent was in liquidation and that in the circumstances, if they wished to proceed with the applications, it may be necessary for them to seek the leave of a court to allow that to occur. This was done on the basis of the potential application of s.500(2) of the Corporations Act to the proceedings, discussed below. [6] Directions were issued to all Applicants on 8 August 2024 requiring that they file evidence by 29 August 2024 that leave of the court has been sought pursuant to s.500(2) of the Corporations Act to allow the applications to proceed or notice that the Applicants intended to seek such leave. [7] On 15 August 2024, further directions were made requiring each of the Applicants to file any material in support of their application by 29 August 2024. The matter was relisted for further directions on the latter date. [8] No material was received from any of the Applicants by 29 August in response to these directions. [9] Only Ms. Piua appeared on 29 August 2024. Ms. Piua requested a further brief period to allow her to seek some advice as to how she would proceed. I agreed to allow Ms. Piua and the other Applicants a final opportunity to provide any material in support of the applications and any indication that the Applicants had sought or obtained leave of the court, or that they intended to do so, by close of business on 3 September 2024. The parties were advised that in the absence of a response, the matter would be dealt with on the basis of the available material and may be dismissed without further notice to them. [10] Nothing was received in response to the correspondence referred to above. [11] The Liquidators referred to s.471B of the Corporations Act. That section is concerned with compulsory liquidation. It provides: 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. [2024] FWC 2424 3 [12] In Smith v. Trollope Silverwood & Beck Pty Ltd1 a Full Bench of the Commission concluded that s.471B of the Corporations Act did not apply to Commission proceedings because the Commission is not a ‘court’ within the meaning of the term in that section. Consequently, leave of a court was not required by that section in order for the matter to proceed in the Commission. [13] Section 500(2) appears in Chapter 5 Part 5.5 of the Corporations Act and deals with the situation of voluntary liquidation. It provides, relevantly: Execution and civil proceedings … (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. … [14] Section 9 of the Corporations Act defines a "resolution for voluntary winding up" as the special resolution referred to in section 491. Section 491 provides that, subject to s.490, a company may be wound up voluntarily if the company so resolves by special resolution. It appears from the available material that the Respondent’s creditors have resolved, after the company had been placed into administration, to have the company wound up under s.439C(c) of the Corporations Act. In that event, the company is taken to have passed a special resolution under s.4912. [15] It has been held that s.500(2) applies to a creditor’s voluntary winding up3. The Form 505 supplied by the liquidators describes the appointment as “liquidators (CVWU)”, which I understand to be an acronym for creditors voluntary winding up. The Commission has also concluded that an unfair dismissal application falls within the meaning of “civil proceedings” in s.500(2) of the Corporations Act4. Although it may not be strictly necessary for me to determine, I think it likely that s.500(2) of the Corporations Act applies to these proceedings. In any event, I have recently concluded5 that s.500(2) does not prevent the Commission from dealing with matters of this kind by dismissing them where there is insufficient material before the Commission for an application to succeed. That is the situation in each matter here. The Applicants have all been provided with an opportunity to provide material in support of their cases and were on notice that in the absence of that material, the matters would be determined. None of the Applicants have availed themselves of the opportunity. [16] In the absence of sufficient evidence from the applicants to support their claims for unfair dismissal, I cannot be satisfied that the Applicants were unfairly dismissed within the meaning of s.385 of the Act. [17] The applications are dismissed. [2024] FWC 2424 4 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR779010> 1 (2003) 142 IR 137 2 See s.446A(1)(a) and (2)(a). 3 Woolley v. Glenjac Pty Ltd [2014] FWC 7833 at [16]. 4 Grujevski v Queens Wharf Brewery [2014] FWC 3725 (Gooley DP, 5 June 2014) at para. 11. 5 Cross v. Life Style Store Pty Ltd [2014] FWC 2179.