Crystal Brookes -v- Krazy Price

Document Type: Decision

Matter Number: U 111/2020

Matter Description: Unfair dismissal application

Industry: Food Retailing

Jurisdiction: Single Commissioner

Member/Magistrate name: Commissioner D J Matthews

Delivery Date: 20 Aug 2021

Result: Application dismissed

Citation: 2021 WAIRC 00471

WAIG Reference:

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2021 WAIRC 00471
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00471

CORAM
: COMMISSIONER D J MATTHEWS

HEARD
:
MONDAY, 16 NOVEMBER 2020

DELIVERED : FRIDAY, 20 AUGUST 2021

FILE NO. : U 111 OF 2020

BETWEEN
:
CRYSTAL BROOKES
Applicant

AND

KRAZY PRICE
Respondent

Catchwords : Industrial Law (WA) - Termination of employment - Unfair dismissal application - Whether Commission has jurisdiction - Respondent is a trading corporation - No jurisdiction to hear and determine application
Legislation : Industrial Relations Act 1979 (WA); Fair Work Act 2009 (Cth)
Result : Application dismissed
REPRESENTATION:

APPLICANT : IN PERSON
RESPONDENT : MS S CHRISTIE (AS AGENT)

Case(s) referred to in reasons:
Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254; (2008) 89 WAIG 243

Reasons for Decision

1 This matter has been awaiting decision since February 2021. The delay from that time until this has been the result of illness, mine, and ought not prejudice the applicant if she should choose to pursue a claim for unfair dismissal in the Fair Work Commission, it being clear, for reasons that follow, that she may not pursue it in this jurisdiction.
2 Given that Ms Brookes’ claim is one relating to her alleged unfair dismissal, in order for the Western Australian Industrial Relations Commission to have jurisdiction to hear the claim, the Western Australian Industrial Relations Commission must be satisfied the Fair Work Act 2009 (Cth) does not apply to her employment.
3 The Fair Work Act 2009 (Cth), relevantly, in relation to unfair dismissal claims, applies to the exclusion of the Industrial Relations Act 1979 (WA) in so far as the State Act would otherwise apply in relation to a “national system employer”.
4 The Fair Work Act 2009 (Cth) defines "national system employer" as a "constitutional corporation, so far as it employs, or usually employs, an individual".
5 "Constitutional corporation" is defined to mean "a corporation to which paragraph 51(xx) of the Constitution applies" and, relevantly, "constitutional corporations" are defined as "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth."
6 The respondent says it is a trading corporation. If a corporation is a trading corporation, the jurisdiction of the Western Australian Industrial Relations Commission to deal with Ms Brookes’ claim is excluded by section 26(1) of the Fair Work Act 2009 (Cth) and section 109 of the Constitution.
7 According to the decision of Steytler P in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254; (2008) 89 WAIG 243, in deciding whether an entity may properly be described as a trading corporation, the following principles should be considered:
(1) A corporation may be a trading corporation even though trading is not its predominant activity.
(2) However, trading must be a substantial and not merely a peripheral activity.
(3) In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services.
(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.
(5) The ends which a corporation seeks to serve by trading are irrelevant to its description. Consequently, the fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as "trade".
(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisation as a “trading corporation” is a question of fact and degree.
(7) The current activities of a corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of a corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade.
(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading.
8 In this matter, I have before me:
(a) an unfair dismissal application filed 23 September 2020;
(b) an employer response filed 8 October 2020 in which the respondent raised the jurisdictional objection with which these reasons deal;
(c) a transcript of proceedings before me on 16 November 2020 relating to the jurisdictional objection;
(d) a witness statement of Ishwar Pindoria dated 25 November 2020 with attachments "A" to "Q", provided under cover of email dated 26 November 2020; and
(e) the respondent's written submissions on the jurisdictional objection, provided under cover of email dated 26 November 2020.
9 The applicant was invited several times to provide documentation in response to (d) and (e) above if she wished to do so. Nothing was provided.
10 The materials provided by the respondent demonstrate conclusively that the applicant was employed by "Krazy Price Group Pty Ltd" and that that entity is a trading corporation.
11 Ishwar Pindoria is a director of Krazy Price Group Pty Ltd. (See [2] of witness statement)
12 Acting in that capacity, Mr Pindoria employed the applicant in a business run by Krazy Price Group Pty Ltd. (See [14] to [25] of witness statement)
13 Krazy Price Group Pty Ltd runs classic small retail businesses selling "homewares, party supplies, art and craft wares, pet supplies, toys, giftware and similar such items direct to the public". (See [11] of witness statement)
14 Krazy Price Group Pty Ltd is a quintessential trading corporation. It engages in trade to earn revenue. This is pretty much all it does.
15 There will be two orders.
16 The first will amend the name of the respondent in accordance with the submissions made at [6] to [11] of the respondent’s written submissions.
17 The second will dismiss the unfair dismissal application against that entity for want of jurisdiction.
Crystal Brookes -v- Krazy Price

UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

 

CITATION : 2021 WAIRC 00471

 

CORAM

: Commissioner D J Matthews

 

HEARD

:

Monday, 16 November 2020

 

DELIVERED : FRIday, 20 August 2021

 

FILE NO. : U 111 OF 2020

 

BETWEEN

:

Crystal Brookes

Applicant

 

AND

 

Krazy Price

Respondent

 

Catchwords : Industrial Law (WA) - Termination of employment - Unfair dismissal application - Whether Commission has jurisdiction - Respondent is a trading corporation - No jurisdiction to hear and determine application

Legislation : Industrial Relations Act 1979 (WA); Fair Work Act 2009 (Cth)

Result : Application dismissed

Representation:

 


Applicant : In person

Respondent : Ms S Christie (as agent)

 

Case(s) referred to in reasons:

Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254; (2008) 89 WAIG 243


Reasons for Decision

 

1         This matter has been awaiting decision since February 2021.  The delay from that time until this has been the result of illness, mine, and ought not prejudice the applicant if she should choose to pursue a claim for unfair dismissal in the Fair Work Commission, it being clear, for reasons that follow, that she may not pursue it in this jurisdiction. 

2 Given that Ms Brookes’ claim is one relating to her alleged unfair dismissal, in order for the Western Australian Industrial Relations Commission to have jurisdiction to hear the claim, the Western Australian Industrial Relations Commission must be satisfied the Fair Work Act 2009 (Cth) does not apply to her employment.

3 The Fair Work Act 2009 (Cth), relevantly, in relation to unfair dismissal claims, applies to the exclusion of the Industrial Relations Act 1979 (WA) in so far as the State Act would otherwise apply in relation to a “national system employer”.

4 The Fair Work Act 2009 (Cth) defines "national system employer" as a "constitutional corporation, so far as it employs, or usually employs, an individual". 

5 "Constitutional corporation" is defined to mean "a corporation to which paragraph 51(xx) of the Constitution applies" and, relevantly, "constitutional corporations" are defined as "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth."

6 The respondent says it is a trading corporation.  If a corporation is a trading corporation, the jurisdiction of the Western Australian Industrial Relations Commission to deal with Ms Brookes’ claim is excluded by section 26(1) of the Fair Work Act 2009 (Cth) and section 109 of the Constitution.

7 According to the decision of Steytler P in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254; (2008) 89 WAIG 243, in deciding whether an entity may properly be described as a trading corporation, the following principles should be considered:

(1) A corporation may be a trading corporation even though trading is not its predominant activity.

(2) However, trading must be a substantial and not merely a peripheral activity.

(3) In this context, “trading” is not given a narrow construction.  It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services.

(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.

(5) The ends which a corporation seeks to serve by trading are irrelevant to its description.  Consequently, the fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as "trade".

(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisation as a “trading corporation” is a question of fact and degree.

(7) The current activities of a corporation, while an important criterion for determining its characterisation, are not the only criterion.  Regard must also be had to the intended purpose of a corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade.

(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading.

8         In this matter, I have before me:

(a) an unfair dismissal application filed 23 September 2020;

(b) an employer response filed 8 October 2020 in which the respondent raised the jurisdictional objection with which these reasons deal;

(c) a transcript of proceedings before me on 16 November 2020 relating to the jurisdictional objection;

(d) a witness statement of Ishwar Pindoria dated 25 November 2020 with attachments "A" to "Q", provided under cover of email dated 26 November 2020; and

(e) the respondent's written submissions on the jurisdictional objection, provided under cover of email dated 26 November 2020.

9         The applicant was invited several times to provide documentation in response to (d) and (e) above if she wished to do so.  Nothing was provided. 

10      The materials provided by the respondent demonstrate conclusively that the applicant was employed by "Krazy Price Group Pty Ltd" and that that entity is a trading corporation.

11      Ishwar Pindoria is a director of Krazy Price Group Pty Ltd. (See [2] of witness statement) 

12      Acting in that capacity, Mr Pindoria employed the applicant in a business run by Krazy Price Group Pty Ltd. (See [14] to [25] of witness statement) 

13      Krazy Price Group Pty Ltd runs classic small retail businesses selling "homewares, party supplies, art and craft wares, pet supplies, toys, giftware and similar such items direct to the public". (See [11] of witness statement)

14      Krazy Price Group Pty Ltd is a quintessential trading corporation.  It engages in trade to earn revenue.  This is pretty much all it does.

15      There will be two orders.

16      The first will amend the name of the respondent in accordance with the submissions made at [6] to [11] of the respondent’s written submissions.

17      The second will dismiss the unfair dismissal application against that entity for want of jurisdiction.