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

[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

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).

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.

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.

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.

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.

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

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’.

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.

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.

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

Dr Mehrdad Honarvar applied to the Fair Work Commission to deal with a claim of unlawful termination of employment against Heart Care Western Australia Pty Ltd, trading as Advara Heartcare. The Commission was required to determine whether it had jurisdiction to hear the matter. The respondent argued that the applicant had failed to lodge a general protections application in the Federal Court as required by section 723 of the Fair Work Act 2009. The central legal issue was whether the respondent was a national system employer, as such employers are required to have any unfair dismissal claims made in the Federal Court, rather than the Fair Work Commission.

The Deputy President considered whether the respondent was a national system employer. A national system employer is defined as a constitutional corporation, as per section 14 of the Fair Work Act. The evidence demonstrated that the respondent was a proprietary limited corporation formed within Australia, providing services in the private sector and engaging in substantial trading activities. The Deputy President was satisfied that the respondent met the criteria of a national system employer, and thus, the applicant was a national system employee under section 13 of the Act. Consequently, the applicant was required to make a general protections application in the Federal Court rather than an unlawful termination application to the Fair Work Commission.

Given that the respondent was a national system employer, the Deputy President dismissed the application for lack of jurisdiction. The applicant was required to make a general protections application in the Federal Court, not an unlawful termination application to the Fair Work Commission. The Deputy President exercised discretion under section 587(1)(a) of the Act to dismiss the application. An order was issued to reflect this decision.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established