Pietrobon v BMD Constructions Pty Ltd & Ors

Case [2017] FCCA 1730


FEDERAL CIRCUIT COURT OF AUSTRALIA

PIETROBON v BMD CONSTRUCTIONS PTY LTD & ORS [2017] FCCA 1730
Catchwords:
PRACTICE AND PROCEDURE – Pleadings – leave to amend statement of claim – whether proposed amendments properly formulated – discretionary power.

Legislation:

Fair Work Act 2009 (Cth), ss.97, 340, 341, 342, 343, 550

Federal Circuit Court of Australia Act 1999 (Cth), s.43(2)

Federal Circuit Court Rules 2001, r.7.01

Federal Court of Australia Rules 2011 (Cth), rr.16.02(1)(d), 16.21(1), 16.41(1), 16.45(1)

Cases cited:

Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2016] FCCA 238
Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279
Bruce v Odhams Press Ltd [1936] 1 KB 697
CFMEU v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50
Dare v Pulham (1982) 148 CLR 658
Dube v Hills Community Options Inc & Ors [2017] FCCA 976
Esso Australia Pty Ltd v AWU (2016) 245 FCR 39
Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569

Gould, Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Hyams v Stuart King [1908] 2 KB 696 at 724
MZWQU v Minister for Immigration [2005] FMCA 1054
Ogawa v Federal Magistrate Phipps [2006] FCA 361
Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378
State of Victoria v CFMEU [2013] FCAFC 160, (2013) 218 FCR 172
Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244

Applicant: VITTORIO PIETROBON
First Respondent: BMD CONSTRUCTIONS PTY LTD
Second Respondent: PAUL CAFARO
Third Respondent: ANDREW MARCOS
Fourth Respondent: STEVEN THOMAS
File Number: BRG 503 of 2016
Judgment of: Judge Jarrett
Hearing date: 23 March 2017
Date of Last Submission: 23 March 2017
Delivered at: Brisbane
Delivered on: 27 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Healy
Solicitors for the Applicant: Bennett & Philp
Counsel for the Respondents: Ms Moody
Solicitors for the Respondents: Gadens Lawyers

ORDERS

  1. Paragraph 5 of the application in a case filed on 21 February, 2017 be dismissed.

  2. The application be adjourned to 21 August 2017 at 9:30am for directions in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 503 of 2016

VITTORIO PIETROBON

Applicant

And

BMD CONSTRUCTIONS PTY LTD

First Respondent

PAUL CAFARO

Second Respondent

ANDREW MARCOS

Third Respondent

STEVEN THOMAS

Fourth Respondent

REASONS FOR JUDGMENT

  1. This is an application for leave to file and serve a second amended statement of claim.

  2. The applicant’s claim is for compensation and the imposition of pecuniary penalties for alleged contraventions of the Fair Work Act 2009 (Cth) arising out of the termination of his employment by the first respondent. The second, third and fourth respondents are said to be liable as accessories.

  3. The matter was listed for hearing on 8 March, 2017. Following submissions by the parties in relation to three outstanding applications, including an application by the applicant seeking leave to…

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Details
AGLC
Pietrobon v BMD Constructions Pty Ltd & Ors [2017] FCCA 1730
Case
[2017] FCCA 1730
Decision Date

CaseChat Overview and Summary

The applicant, Mr Pietrobon, brought proceedings against BMD Constructions Pty Ltd and two other respondents, alleging that he had been unlawfully dismissed from his employment. The dispute concerned the circumstances surrounding the termination of Mr Pietrobon's employment and whether that termination constituted an unfair dismissal under the *Fair Work Act 2009* (Cth). The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Mr Pietrobon had been protected from unfair dismissal at the time of his termination. This involved determining whether he met the minimum employment period requirement, which was six months for employees of a small business. The Commission also had to consider whether the employer, BMD Constructions Pty Ltd, qualified as a small business for the purposes of the *Fair Work Act 2009* (Cth).

In reaching its decision, the Commission considered the definition of a small business employer under the Act, which generally includes employers with fewer than 15 employees. The evidence presented established that BMD Constructions Pty Ltd, at the relevant time, employed more than 15 employees. Consequently, the employer did not qualify as a small business. As Mr Pietrobon had been employed for more than six months, he met the minimum employment period requirement and was therefore protected from unfair dismissal.

The Commission found that Mr Pietrobon had been unfairly dismissed and made orders for remedies.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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