CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - COSTS - Small claim - One weeks notice - Employment by administrator/liquidator - Adjournment to enable leave to proceed under corporations law to be obtained - Special resolution to voluntary winding up of company. Industrial Relations Act 1988 ss170DB, 170EA Corporations Law ss.446A, 446A(2), 491, 500(2) Irons -v- Merchant Capital Limited (unreported judgment of His Honour Justice Young - Supreme Court of NSW 4002 of 1989, 17 October 1994) PHILLIP POAT -v- UFI POOLS AND SPAS (ILLAWARRA) PTY LIMITED (ACN 001 254 020)(administrator appointed) in liquidation. No. NI 1854 of 1995 COURT: McILWAINE JR PLACE: SYDNEY DATE: 6 SEPTEMBER 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1854 of 1995 BETWEEN: PHILLIP POAT Applicant AND: UFI POOLS & SPAS (ILLAWARRA) PTY LIMITED (ACN 001 254 020) (administrator appointed) in liquidation) Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) In this matter Mr Phillip Poat makes a claim under Division 3 of Part VIA of the Industrial Relations Act 1988 ("the Act") for unlawful termination of his employment. The application was filed in Court on 13 April 1995 and made against his former employer UFI Pools & Spas (Illawarra) Pty Limited, (receiver appointed) (in liquidation) (ACN 001254020), which company will be referred to as "the respondent" to the application. I have received a certificate from the Senior Deputy President of Industrial Relations Commission as follows: "In accordance with sub section 170ED(2) of the Industrial Relations Act, 1988 the Commission hereby certifies that it has been unable to settle this matter by conciliation." I am satisfied that the matter is properly before me pursuant to the provisions of the Act. It is conceded by both parties that there was no written notice of termination given and in those circumstances the application although filed some time after the last day worked, that is, 20 February 1995 is in my view not out of time nor is leave required. The proceedings commenced by Mr Poat giving evidence as to the terms of his engagement. His evidence was to the effect that he is currently the general manager of Sutherland Highland Toyota and he started employment with that firm on 1 June 1995. Since the date of his termination he also had about six weeks of employment with UFI Pools and Spas, Sydney, a different group of companies. In September 1994 he began work as the Australian Sales and Marketing Manger of the respondent. On 16 January 1995 he says that he was called to go Yallah where the Managing Director, Mr Kathol Spence advised the meeting that everybody was sacked. According to the evidence: "The very words were, we are all now out of a job". Apparently there was present at that meeting a person who is described by the applicant as: "a gentleman from Ferrier Hodgson and I think his first name was Nick, to be honest, I don't know his other name". Mr Poat testified that Nick told him that he would run the company until a new buyer or investor was found. Subsequently he went and saw "Nick" and he was told to "just go on with what you're doing or what you've been doing". In my view the terms of his engagement were continued on the existing basis by that representative of the respondent. In his evidence Mr Poat tendered to me a letter dated 23 January 1995 on Ferrier Hodgson letterhead signed by B.R. Silvia as administrator. This is a standard type of letter issued to creditors and suppliers requesting they establish a separate account for dealing with the company in its revised role with an administrator appointed. There was also other evidence tendered by the applicant in relation to this matter, namely, a copy of a letter which he signed on 30 March 1990 acknowledging receipt of a bank cheque in respect of net wages for the week ending 20 February 1995. I am advised that there is some moneys outstanding to Mr Poat in relation to him having a claim as an employee of the company and that is shown in schedule E of the letter dated 5 February 1995 again from B.R. Silvia of Ferrier Hodgson which is exhibit 3. Mr Poat gave evidence to the effect that the amount claimed in that letter is for an amount of $1,278.54 being a claim for holiday pay. In addition Mr Poat maintains that he has a claim for some $12,700.00 which includes commission and one weeks pay in lieu of notice against the company and he understands that he ranks as an unsecured creditor in relation to that amount. Mr Poat sought, in respect of this matter, the amount of one weeks pay to which he, on the face of it, would appear to have been entitled pursuant to the provisions of section 170DB of the Act for the period of his employment which commenced on 16 January 1995 with the company in its position with an administrator appointed. I am told that the company acknowledges that there is an amount of annual leave due to him for the period 16 January 1995 and 20 February 1995. There is a difference between Mr Poat's evidence and the view of the respondent as to the actual amount. I believe the sum to be $443.79 as suggested by the company and I accept that amount as being the figure in question. Mr Poat received two different group certificates, one of which has been produced to me in evidence by the company. I do not think I need to consider those Group certificates in any detail because I understand that the respondent is to pay or has already paid Mr Poat's entitlement to superannuation into his superannuation fund. I believe Mr Poat still probably needs to check that this amount has actually arrived in his account. I have accepted the assurance of the solicitor for the respondent that this is to be done. The only claim that is now made is for one weeks pay in lieu of notice and some holiday pay, again which the company is acknowledging it is prepared to pay. Whilst I appreciate the amount claimed is only small, however, I am constrained by the provisions of section 500(2)of the Corporations Law: "After the passing of the resolution for voluntary winding up no action or other civil proceedings shall be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the court imposes." I am satisfied that a document (which is exhibit 4) in these proceedings proved to me that on 24 February 1995, Brian Raymond Silvia was appointed a liquidator pursuant to a creditors voluntary winding up. I think that is sufficient for the purposes of section 500 (2) of the Corporations Law. I mention here that I have also been referred to section ss 446A and 446A(2) of the Corporations Law, by the solicitor for the respondent. In that context I find that there has also been a special resolution to wind up the company under section 491 of the Corporations Law. In those circumstances this action cannot proceed any further without the leave of the Court as required by the Corporations Law. I am satisfied that I do not have the jurisdiction to grant such leave. Mr Poat has given me an undertaking that he will apply for leave to the appropriate Court within a period of 14 days to enable him to continue these proceedings. In those circumstances the matter should be adjourned for a period of two months to enable the application for leave to be made and heard in the appropriate jurisdiction. However, I am not happy that it should just be left on the undertaking by the applicant that he will apply within 14 days for leave of the proper court to proceed and I am adjourning it on the basis that the applicant will apply within 14 days for the leave of the appropriate Court to proceed. I adjourn the matter on the basis Mr Poat will apply for leave to a Court having jurisdiction on the issue by 4.00 pm on 22 September 1995. I now stand the matter over as a part heard matter before myself for further direction. I grant either party liberty to apply for a further directions before me on seven days Notice to the Court and the other party. I note that Mr Poat has conceded that he does not make any claim for compensation other than as outlined in his application. On the questions of costs, Mr Poat quite wisely has not applied for any costs against the respondent. I have heard from the respondent on the question of costs. I have no evidence that Mr Poat has acted vexatiously or without reasonable cause. It is an issue that is yet to be determined one way or the other by this Court. In his submission Mr Ryckmans as solicitor for the respondent referred me to an unreported decision of His Honour Justice Young heard on 17 October 1994 in the Supreme Court of New South Wales (Proceedings No. 4002 of 1989). At this stage I have not found it necessary to further consider this judgment, because of the decision, I have taken to grant an adjournment. In all the circumstances I find that there should be no order for costs. I Order: 1. The proceedings be stayed pursuant to section 500(2) Corporations Law, until leave to proceed has been obtained. 2. The proceedings are adjourned on basis of an undertaking to the Court by the applicant to apply for leave to continue the proceedings within 14 days of 6 September 1995. 3. Matter stood over part heard before me for a further Directions Hearing on 7 February 1996. 4. There will be no order for costs. 5. Registry to notify parties of revised date for directions in writing. I certify that this and the preceding six or five pages are a true copy of the edited reasons for judgment of Judicial Registrar McIlwaine. Associate: Caroline Sternberg Date: 4 January 1996 Appearances Applicant: appeared in person Respondent: Mr M Ryckman, Solicitor Date of Hearing: 6 September 1995 Judgment Date: 6 September 1995