Paragraph 5 of the application in a case filed on 21 February, 2017 be dismissed.
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
This is an application for leave to file and serve a second amended statement of claim.
The applicant’s claim is for compensation and the imposition of pecuniary penalties for alleged contraventions of the Fair Work Act2009 (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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Pietrobon v BMD Constructions Pty Ltd & Ors
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.