Ann Myer v Tallebudgera Surf Life Saving Club Inc

[2021] FWC 3306

[2021] FWC 3306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Ann Myer
v
Tallebudgera Surf Life Saving Club Inc
(C2021/2290)

COMMISSIONER MCKINNON MELBOURNE, 8 JUNE 2021

Application in relation to unlawful termination of employment – application not made in accordance with s.773 – application dismissed.

[1] On 21 April 2021, Ann Myer lodged a Form F9 application in the Commission seeking that it deal with an unlawful termination dispute under s.773 of the Fair Work Act 2009 (Act). The Respondent is Tallebudgera Surf Life Saving Club Inc. I have decided to dismiss the application on jurisdictional grounds, and these are my reasons.

Relevant law

[2] Section 773 of the Act provides:

“773 Application for the FWC to deal with a dispute

If:

(a)  an employer has terminated an employee’s employment; and

(b)  the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[3] Section 772(1) of the Act provides:

“772 Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c) non-membership of a trade union;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) absence from work during maternity leave or other parental leave;

(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Note:          This subsection is a civil remedy provision (see Part 4-1).”

Ms Myer’s application

[4] The Form F9 application filed by Ms Myer on 21 April 2021 is incomplete in the sense that it contains no answer to question 3.2, which asks:

“Which unlawful reason(s) set out in the Fair Work Act 2009 was/were the basis for the employer terminating your employment?”.

[5] The form does not otherwise contain any description or allegation of conduct by or involving the Club which might fall within the scope of section 772 of the Act.

[6] The Commission attempted to contact Ms Myer without success on 22 April 2021, 29 April 2021, 30 April 2021 and 17 May 2021 in relation to the incomplete Form F9.

[7] On 19 May 2021, my chambers wrote to Ms Myer advising that her application was at risk of being dismissed because it was incomplete and attempts to contact Ms Myer had been unsuccessful. Ms Myer responded the same day, stating that she wished to proceed with the application and asking what was required to complete her application. Further attempts were then made to contact Ms Myer to assist her in this regard, but to no avail.

[8] The matter was listed for mention on 27 May 2021. Ms Myer did not appear at the mention and could not be contacted by telephone. The Club appeared at the mention. It applied for dismissal of the application on the basis that it is a national system employer and Ms Myer was entitled to make a general protections court application instead. 1

[9] Later that day my chambers wrote to Ms Myer to express my preliminary view that the application should be dismissed because it did not allege any contravention of s.772(1) of the Act, as required by s.773. Additional difficulties with the application were also noted, being:

1. That, if the Club was a national system employer, she may have been able to make a general protections court application; and

2. That the application appeared to have been made out of time.

[10] Ms Myer was again advised that her application was at risk of being dismissed.

[11] To date, Ms Myer has not responded to the correspondence of 27 May 2021.

Consideration

[12] Section 587 empowers the Commission to dismiss an application, including if it is not made in accordance with the Act.

[13] On the materials before me, no allegation is made by Ms Myer, either in the Form F9 initiating this application or in the attached letter of termination of employment, to the effect that the termination of her employment was for, or included, one of the reasons set out in s.772(1) of the Act. On the contrary, the reason given for termination of employment appears to be failure to pay for a meal ordered from the Club’s coffee shop. On its own, this is not a matter contemplated by section 772(1).

[14] That is not to say that Ms Myer has no access to any remedy under the Act in relation to her dismissal. Section 394 of the Act permits eligible persons who have been dismissed to apply for an unfair dismissal remedy. An application by Ms Myer under section 394 would now be out of time and an extension of time would be required for the application to proceed. This would require Ms Myer to establish the existence of exceptional circumstances supporting a grant of additional time, having regard to the various factors in section 394(3).

[15] In the meantime, and as no allegation has been made that the Club contravened section 772(1) in terminating Ms Myer’s employment, the application is not one made in accordance with s.773 of the Act. The Commission has no jurisdiction to deal with the dispute.

Order

[16] The Application in C2021/2290 is dismissed.

COMMISSIONER

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 1   See Fair Work Act 2009, s.723.