Munaretti v ASC Fountain Gate

FEDERAL COURT OF AUSTRALIA

Munaretti v ASC Fountain Gate [2019] FCA 949

File number:

VID 31 of 2019

Judge:

WHEELAHAN J

Date of judgment:

18 June 2019

Catchwords:

PRACTICE AND PROCEDURE – transfer of proceeding to Federal Circuit Court – where issue with potential importance is necessary to determine – proceeding not transferred – no order as to costs.  

Legislation:

Federal Court of Australia Act 1976 (Cth) s 32AB

Federal Court Rules2011 (Cth) r 27.12

Cases:

Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102
Heldberg v Rand Transport (1986) Pty Ltd [2018] FCA 1141

Date of hearing:

22 March 2019

Date of last submissions:

31 March 2019

Registry:

Victoria

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicant:

Ms M Paszkiewicz

Solicitor for the Applicant:

McDonald Murholme

Counsel for the Respondent:

Mr M Stirling

Solicitor for the Respondent:

Gilchrist Connell

ORDERS

VID31 of 2019

BETWEEN:

ABIR MUNARETTI

Applicant

AND:

ASC FOUNTAIN GATE PTY LTD (ACN 610 278 709)

Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	18 JUNE 2019

THE COURT ORDERS THAT:

1.On or before 4.00pm on 12 July 2019 the parties submit a consent minute, or if they are unable to consent, separate minutes of proposed orders for the further conduct of the proceeding in this Court so that further directions may be determined in Chambers on the papers.

2.There be no order as to costs of the question of transfer of the proceeding to the Federal Circuit Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The applicant was employed by the respondent in February 2016 as a Dermal Technician. In January 2017, the applicant was appointed to the position of Clinic Manager.

2. The applicant alleges that the respondent took adverse action within the meaning of s 342(1) of the Fair Work Act 2009 (Cth) against her when she was dismissed from her employment on 18 October 2018, following verbal and written complaints she had made to the respondent relating to conditions of her employment, and carer’s leave taken to care for an immediate family member. The applicant submits that in making the complaints and taking carer’s leave, she was exercising various workplace rights under the Fair Work Act. The applicant alleges that her dismissal was motivated by reason of the complaints that she made and the carer’s leave that she took. The applicant claims to have suffered ongoing loss and damage as a result of her dismissal, and that she was entitled to a reasonable term of notice prior to the termination of her employment, and seeks damages, compensation, and pecuniary penalties against the respondent under the Fair Work Act.

3. At the first case management hearing on 22 March 2019, the Court raised with the parties whether the proceeding should be transferred to the Federal Circuit Court under s 32AB of the Federal Court of…