BARAKIS v Global Vision Media

[2014] FCCA 833

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARAKIS v GLOBAL VISION MEDIA [2014] FCCA 833

Catchwords:
INDUSTRIAL LAW – Unfair dismissal – claim for payment in lieu of notice - jurisdiction to hear claim – ‘high income threshold’ exceeded – application struck out for want of jurisdiction.

Legislation: 
Fair Work Act 2009, ss.382, 382(b)(iii), 386, 731, 732(1), 732(2)

Applicant: KATHY BARAKIS

Respondent: GLOBAL VISION MEDIA

File Number: MLG 403 of 2012

Judgment of: Judge O'Dwyer

Hearing dates: 26 July 2012 and 14 February 2013

Date of Last Submission: 1 May 2013

Delivered at: Melbourne

Delivered on: 28 April 2014

REPRESENTATION

Counsel for the Applicant: In person

Solicitor for the Applicant: In Person

Counsel for the Respondent: Mr Ritchie

Solicitor for the Respondent: Victorian Employers Chambers of Commerce and Industry

THE COURT ORDERS THAT:

1. The application filed on 11 April 2012 is struck out.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 403 of 2012

KATHY BARAKIS

Applicant

And

GLOBAL VISION MEDIA

Respondent

REASONS FOR JUDGMENT

Introduction

1. The genesis of this proceeding is the Applicant’s termination of employment with the Respondent.

2. The Applicant was unrepresented, but was assisted by a McKenzie Friend; namely, her brother. The Respondent was represented by an employee of the Victorian Employers’ Chamber of Commerce and Industry.

3. The Applicant initiated this proceeding pursuant to the Small Claims process as provided under s.548 of the Fair Work Act 2009 (“the FW Act”). The Applicant initially sought by way of remedy a claim for allowances and expenses in the sum of $248.90 and a payment of $9230.76 in lieu of notice of termination of employment. Later, the Applicant’s claim extended to claims of $234.20 for remedial massage/myotherapy, $2670.58 in respect of legal fees and a final claim of $18,000 for loss of income.

4. The Applicant alleges that her employment was summarily terminated on 24 February 2012, or alternatively there was a constructive dismissal on that date.

5. The matter first came before the Court on 16 May 2012, but was unable to proceed on that day because of a lack of proof of service. It was adjourned to 31 May 2012 on which date the Respondent appeared and was represented. It became evident, however, that the nature of the Applicant’s claim was not one which engaged the Small Claims process as the Applicant claimed, in effect, unfair dismissal. Accordingly, leave was granted to the Applicant to amend her application, which she did not do. Other procedural orders were made in respect of the provision of witness statements and the matter adjourned for hearing on 26 July 2012. Thereafter it was adjourned part-heard to 14 February 2013. At the conclusion of the giving of evidence, an order was made for the filing of final submissions. The parties complied with the timetable set for submissions.

Jurisdiction of the Court

1. For the Court to have jurisdiction in this proceeding, it must be a claim under sections 382, 386 and 731 of the FW Act. To engage the FW Act, in the circumstances of this proceeding, the Applicant would have to establish that her termination of employment was an unfair dismissal with immediate effect.

2. Section 382 provides the qualifying criteria to engage the FW Act in respect of unfair dismissals. The section provides:

   382  A person is protected from unfair dismissal at a time if, at that time:

   (a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

   (b) one or more of the following apply:

   (i)   a modern award covers the person;

   (ii) an enterprise agreement applies to the person in relation to the employment;

   (iii)   the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

3. There was no evidence, or suggestion, that the subject contract of employment satisfied either s.382 (b)(i) or s.382(b)(ii).

4. At the time that this proceeding was initiated the ‘high income threshold’ for the financial year 2011/2012 was $118,100. The subject contract of employment provided for an annual remuneration of $120,000, plus bonuses earned. Accordingly, s.382(b)(iii) is not satisfied, which consequentially deprives this Court of jurisdiction.[1]

   [1] There is no other State law, to my knowledge, under which the Applicant can prosecute her application. Her remedy appears to be at common law under State jurisdiction. See s.731 of FW Act.

5. The application filed on 11 April 2012 is, therefore, struck out for want of jurisdiction.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate: 

Date:  28 April 2014