Concettina Mellios v Department of Education

[2022] FWC 1176

[2022] FWC 1176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Concettina Mellios
v

Department Of Education

(U2022/3077)

COMMISSIONER O’NEILL MELBOURNE, 20 MAY 2022

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

1. On 11 March 2022, Ms Concettina Mellios 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).

1. On 14 March 2022, the Commission attempted to contact Ms Mellios via their nominated telephone number to discuss her application. The call went unanswered and no voicemail was able to be left.

1. Later that day, the Commission emailed correspondence to Ms Mellios’s nominated email address advising that based on the information contained in the application, the Department of Education 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 Mellios 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.

1. As the required information was not received, on 01 April 2022, the Commission attempted to contact Ms Mellios on her nominated telephone number. She did not answer the call. A voicemail message was left requesting Ms Mellios to contact the Commission to advise whether she wishes to continue with her application as it appears her employer is a non-national system employer. It was further explained that some State government employers are covered by a State Industrial Relations Tribunal, and should she wish to discuss the application, Commission contact details were provided.

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

1. The Commission investigated the matter further and found that a Fair Work (State Declaration) Endorsement declared that Department of Education was not a national system employer.

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

1. In considering the provisions of the Act in addition to the State Declaration, I am satisfied that the Commission has no jurisdiction to determine Ms Mellios’s application for unfair dismissal as her employment was not with a national system employer.

1. 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.

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

1. 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

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