Bradley Hart v SR & At Osborn Family Trust

[2022] FWC 2092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bradley Hart
v

SR & AT Osborn Family Trust

(U2022/7704)

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, Mr Bradley Hart 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 contacted Mr Hart via his nominated telephone number to discuss his application. The Commission advised Mr Hart that employees who were not employed by a national system employer were ineligible to make an application for an unfair dismissal remedy. The Commission provided contacts for Mr Hart to get legal advice and requested that once advice was received, he inform the Commission whether he was going to proceed or discontinue his application.

Later that day, the Commission emailed correspondence to Mr Hart’s nominated email address advising that based on the information contained in the application, that SR & AT Osborn Family Trust 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 his application. The correspondence also required Mr Hart to advise the Commission within 14 days whether he wished to proceed with his application and warned that the application may be dismissed if no response was received.

As the required information was not received, on 5 August 2022 the Commission attempted to contacted Mr Hart on his nominated telephone number. Mr Hart advised that he was still in the process of obtaining legal advice but had been delayed as he had commenced new employment. The Commission advised that his response was due 5 August 2022, which he acknowledged.

To date, Mr Hart 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”. Mr Hart and SR & AT Osborn Family Trust 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 Mr Hart’s application for unfair dismissal as his 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

Bradley Hart filed an application for relief from unfair dismissal against SR & AT Osborn Family Trust before the Fair Work Commission. The application was dismissed because the Commission determined it did not have jurisdiction over the matter due to the nature of the employment. Hart's employment was not with a national system employer, as required by Division 1 of Part 3-2 of the Fair Work Act 2009 (FW Act). The Commission notified Hart of this jurisdictional issue and advised him to seek legal advice and confirm whether he intended to proceed with the application. Hart did not respond to the Commission's inquiries within the required timeframe, leading to the dismissal of his application under section 587(1)(c) of the FW Act.

The primary legal issue before the Commission was whether it had jurisdiction to hear Hart's application for unfair dismissal. The FW Act limits the definition of "employee" and "employer" to those within the national system. Since Hart's employment was not with a national system employer, the Commission was required to assess whether it had jurisdiction over the matter. Hart's application did not comply with the requirements of the FW Act, as it did not pertain to a national system employer or employee. Consequently, the Commission found that the application was not made in accordance with the Act, leading to its dismissal.

The Commissioner determined that the application did not comply with the FW Act because Hart's employment did not fall under the national system. The Commission's jurisdiction is limited to cases involving national system employers and employees. Since Hart's employment was not with a national system employer, the Commission did not have the authority to hear the application for unfair dismissal. The application was dismissed under section 587(1)(c) of the FW Act because it had no reasonable prospect of success due to the jurisdictional issue. An order giving effect to this decision will be issued shortly.

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