Deregistered employer was still liable for unfair dismissal

The Facts

The Applicant accused the company of sacking her without warning or reason in November 2018, telling her in a text message it had discarded her possessions because she was no longer employed.

The Respondent employer alleged that she was terminated for using the company’s confidential and protected information without a reasonable basis for doing so, and interfering with the company’s intellectual property.

Decision by Fair Work Commission

The Respondent employer demanded that the Fair Work Commission strike out the Applicant’s application, contending it could not lawfully proceed after ASIC deregistered the company around four months earlier for non-payment of annual fees.

Deputy President John Kovacic found section s601AD of the Corporations Act 2001 (Cth) provides that ‘officers of the company may still be liable for things done before the company was deregistered’. Therefore, this section of the Corporations Act 2001 (Cth) does not explicitly preclude litigation against a deregistered entity.

Key Takeaways

Deregistration of an employer company by ASIC will not preclude the Fair Work Commission from determining an unfair dismissal application. By analogy, in circumstances where a company is being voluntarily wound up, an employee should still have a right to an unfair dismissal claim against the employer.

Get in touch

If you feel your employment has been unfairly terminated, call us for a no-obligation chat. Even if your employer has been deregistered, or is in the process of being wound up, you can still make a valid claim. Please contact us on (02) 9199 8597 or via email wehelp@jfmlaw.com.au.

The information contained in this post is current at the date of editing – 6 November 2023.

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