Mr Saiful Basunia v Franchise Garage Pty Ltd T/A Franchise Garage

[2013] FWC 3931

[2013] FWC 3931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Saiful Basunia
v
Franchise Garage Pty Ltd T/A Franchise Garage
(U2013/6145)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 20 JUNE 2013

Jurisdictional objection

[1] I heard this application in Sydney on 1 May 2013. It was listed to determine the various jurisdictional objections of the respondent, Franchise Garage Proprietary Limited trading as Franchise Garage (Franchise Garage), to Mr Basunia's application proceeding to arbitration.

[2] Mr Nasser appeared for Franchise Garage and Mr Basunia appeared on his own behalf.

[3] Mr Nasser did not have with him the various papers and files he required for his submission. He advised me that they had disappeared from his desk that morning for reasons he was unable to explain. I directed my staff to photocopy the documents he required. At the conclusion of Mr Nasser's submissions it was clear to me that he did not understand what he was doing and I endeavoured to assist him. I allowed him to provide further written material and submissions following the hearing. He subsequently supplied various materials and submissions.

[4] Mr Basunia had provided a submission prior to the hearing on 1 May 2013, and he also provided submissions in response to Mr Nasser’s later materials and submissions. Mr Basunia submitted that he was required to become the General Manager of a new brand, woodfire.com, at the same time as continuing his employment with Franchise Garage as Operations and Training Manager. His employment with Franchise Garage was not terminated when he acquired the additional duties with woodfire.com.

[5] I have considered and taken into account the material and submissions supplied by both parties.

[6] Mr Nasser’s materials and submissions were not coherent and mostly failed to deal with the issue for determination by me. An extract of his submissions are set out below:

“We submit that Franchise Garage Pty and woodfire.com Pty are not the same company. There is no transmission of resources, decision making or power between the two companies.

The two companies have different agenda’s financially

The two companies sell different products (pizza v Coffee roasting)

The two companies have different owners

The two companies are not finically aligned

The two companies have different Management

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Mr Basunia was the general manager and the only employee of the Woodfire pty company. Mr Basunia had total control of the company and it’s finances. He was free to and entitled to use that money to pay out his entitlements owed from Franchise Garage and or invest it in the growth of Woodfire.com to assist him in getting profit based bonuses.”

[7] Mr Nasser submitted that Mr Basunia was free to pay himself any entitlements he might have been due at the conclusion of his employment with Franchise Garage out of the funds which Franchise Garage invested in woodfire.com. There was no payment of any entitlements due to Mr Basunia at the purported conclusion of Mr Basunia’s employment with Franchise Garage and commencement with woodfire.com.

[8] Mr Nasser’s submissions did not persuade me that I should make any factual finding adverse to Mr Basunia and dismiss his application. I am not persuaded by the submissions of Mr Nasser that there is any basis for the jurisdictional objections of Franchise Garage.

[9] I am satisfied and find that Mr Basunia was employed by Franchise Garage up to and including the date alleged by him to be the date on which his employment was terminated.

[10] I am not in a position to make any finding regarding the merits of the application pursuant to s394 of the Fair Work Act 2009 (the Act) and the application was not listed before me for that purpose. This application will be referred to another member for arbitration.

SENIOR DEPUTY PRESIDENT

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