Dr Mehrdad Honarvar v Heart Care Western Australia Pty Ltd T/A Advara Heartcare

[2024] FWC 1667

[2024] FWC 1667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Dr Mehrdad Honarvar
v

Heart Care Western Australia Pty Ltd T/A Advara Heartcare

(C2024/2997)

DEPUTY PRESIDENT BEAUMONT PERTH, 25 JUNE 2024

Application to deal with an unlawful termination dispute

1. On 10 May 2024, Dr Mehrdad Honarvar (the Applicant) made an application to deal with an unlawful termination dispute to the Fair Work Commission pursuant to s 773 of the Fair Work Act 2009 (Cth) (the Act). 

1. The Applicant named the respondent to the application as Advara Healthcare Western Australia Pty Ltd.  However, according to the Applicant’s employment contract and the submissions of Heart Care Western Australia Pty Ltd ACN 127 418 526 trading as Advara Heartcare, the former employer of the Applicant was Heart Care Western Australia Pty Ltd (the Respondent). This was not challenged by the Applicant, and I therefore permitted an amendment to the name of the Respondent pursuant to s 586 of the Act.

1. Under s 723 of the Act, a person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

1. The Respondent objected to the application on the basis that the Applicant was entitled to make a general protections court application in relation to the alleged conduct.

1. To be entitled to make a general protections court application, the relevant employer is required to be a ‘national system employer’. A national system employer under s 14 of the Act means a ‘constitutional corporation’, so far as it employs, or usually employs an individual. A ‘constitutional corporation’ within the meaning of the Act is a corporation within the meaning of clause 51(xx) of the Constitution, namely a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth.

1. If it is the case that the Respondent is a national system employer, then there is no jurisdiction to deal with the matter. 

1. Briefly stated, the evidence before me supports the finding that the Respondent, the Applicant’s former employer, is a proprietary limited corporation formed within Australia that provides services in the private sector (i.e. on a commercial / for profit basis) and engages in substantial trading activities.  In arriving at this finding, I have considered the evidence of the Applicant, the Applicant’s employment contract, the evidence of incorporation[1] and the annual report for the Advara HeartCare Group (HeartHealth Holdco Pty Ltd) (which includes the Respondent).[2]  Further, I have considered the submissions of the Respondent.  It follows that I am satisfied that the Respondent was, at the time of the Applicant’s dismissal, a ‘national system employer’.

1. In the circumstances, I am satisfied that the Applicant lodged an unlawful termination application when, as a ‘national system employee’, he was entitled to make a general protections application and accordingly, the application has not been made in accordance with s 723 of the Act.

1. Given the above finding that the Respondent was a ‘national system employer’ and the Applicant was, by virtue of s 13 of the Act, a ‘national system employee’ and was therefore entitled to make a general protections court application and so is not able to make this application under s 773 of the Act, I am persuaded that I should exercise my discretion and dismiss the application pursuant to s 587(1)(a) of the Act.

1. An Order[3] to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mehrdad Honarvar, the Applicant
Julianne Stringer of the Respondent

Hearing details:

2024
Perth (by video):
25 June.

[1] Australian Securities & Investments Commission – Current & Historical Company Extract for Heart Care Western Australia Pty Ltd. 

[2] Respondent’s Outline of Submissions, [4]. 

[3] PR776402.

Printed by authority of the Commonwealth Government Printer

<PR776399>