Bradley Hart v SR & At Osborn Family Trust
[2022] FWC 2092
•8 AUGUST 2022
| [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
<PR744581>
0
0
0