Arieta Laweloa v NSW Government

[2022] FWC 2095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Arieta Laweloa
v

NSW Government

(U2022/7730)

COMMISSIONER BISSETT

MELBOURNE, 8 AUGUST 2022

Application for relief from unfair dismissal- national system employer – dismissal under s.587 at the Commission’s initiative.

On 21 July 2022, Ms Arieta Laweloa made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

On 22 July 2022 the Commission attempted to contact Ms Laweloa via her nominated telephone number to discuss her application. Ms Laweloa did not answer the call. A voicemail message was left requesting she call the Commission on the Helpline as the application form was mostly incomplete. The Commission also advised Ms Laweloa that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy.

Later that day, the Commission emailed correspondence to Ms Laweloa’s nominated email address advising that based on the information contained in the application the NSW Government may not be a national system employer and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with her application. The correspondence also required Ms Laweloa to advise the Commission within 14 days whether she wished to proceed with her application and warned that the application may be dismissed if no response was received.

Ms Laweloa called the Commission on 25 July 2022, asking who the correct organisation was to lodge her application. The Commission provided the website for the NSW Industrial Relations Commission. The Commission advised Ms Laweloa that she had 14 days in which to advise the Commission whether she wanted to proceed or discontinue her current application with the Commission. Ms Laweloa advised she would get back to the Commission regarding her decision within that timeframe.

As the required information was not received, on 3 August 2022, the Commission attempted to contact Ms Laweloa on her nominated telephone number. Ms Laweloa did not answer the call. A voicemail message was left requesting her to contact the Commission to advise whether or not she wanted to proceed with her application.

To date, Ms Laweloa has not contacted the Commission or provided any further information.

Division 1 of Part 3-2 of the FW Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, s.380 of the FW Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Ms Laweloa and NSW Government do not respectively fall within the scope of this definition.

In considering the provisions of the FW Act I am satisfied that the Commission has no jurisdiction to determine Ms Laweloa’s application for unfair dismissal as his/her employment was not with a national system employer.

Section 587(1) of the FW Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospect of success.

In this circumstance, I have determined that the application was not made in accordance with the FW Act.

Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An order giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Arieta Laweloa sought a remedy for unfair dismissal against the NSW Government. The central issue was whether the Fair Work Commission had jurisdiction to hear her claim, given that it was not certain whether the NSW Government was a national system employer. The Fair Work Act 2009 establishes that the Act applies to national system employers and employees, and this was the threshold question before the Commission. If the NSW Government was not a national system employer, then the Commission would lack jurisdiction to hear the matter.

The Commission examined the application and correspondence with Laweloa. It found that the application was incomplete and did not provide sufficient information to determine if the NSW Government was a national system employer. The Commission notified Laweloa that if the employer was not a national system employer, then the Commission would not have jurisdiction to hear her unfair dismissal claim. The Commission also advised Laweloa to seek further advice on the issue and to respond within 14 days if she wished to proceed with her application. When no response was received, the Commission determined that the application did not comply with the Act, and dismissed the application under section 587 of the Act.

The Commission concluded that it did not have jurisdiction to hear the unfair dismissal claim as the NSW Government may not be a national system employer. The application was dismissed under section 587(1)(c) of the Fair Work Act, as the application had no reasonable prospect of success. An order will be issued shortly to give effect to this decision.

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