Craig Smeets v South Street Auto Repairs

[2023] FWC 2927

[2023] FWC 2927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Craig Smeets
v

South Street Auto Repairs

(U2023/7410)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 NOVEMBER 2023

Application for relief from unfair dismissal – not a national system employer – application dismissed.

1. On 10 August 2023, Craig Smeets (the Applicant) 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). The Applicant named South Street Auto Repairs as the Respondent to his application. Based on the ABN provided by the Applicant, it appeared that South Street Auto Repairs is a sole trader in Western Australia, and therefore may not be a national system employer.

1. On 15 August 2023, the Commission attempted to contact the Applicant via his nominated telephone number to discuss his application. The Applicant did not answer the call. A service provider message said the “mobile number [was] currently not accepting phone calls”. There was no facility to leave a voicemail message.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that, based on the information contained in the application, South Street Auto Repairs may not be a national system employer and advised the Applicant to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with his application. The correspondence also required the Applicant to advise the Commission within 14 days whether he wished to proceed with his application. The correspondence warned that the application may be dismissed if no response was received. An SMS notification was also sent to the Applicant’s nominated telephone number advising that there was a problem with their application and requesting that they contact the Commission.

1. That same day, the Commission received emailed correspondence from the Applicant regarding the minimum employment period not being met. This email did not contain any response about whether South Street Auto Repairs was a national system employer.

1. On 25 August 2023, the Commission sent correspondence to the Applicant informing him that he had not addressed whether South Street Auto Repairs was a national system employer. The Applicant was advised to urgently seek advice on the issue.

1. As no further information was received, on 28 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number. The Applicant did not answer the call and there was no facility to leave a voicemail message.  

1. On 2 October 2023, the Applicant contacted the Commission. A Commission staff member explained to the Applicant that South Street Auto Repairs may not be a national system employer and advised the Applicant to urgently seek further advice on this issue. The Applicant advised that they would contact their lawyer as soon as possible, and would contact the Commission to provide instructions on whether they wished to proceed with or discontinue the matter.

1. On 6 October 2023, the Commission emailed correspondence to the Applicant’s nominated email requesting the Applicant to advise the Commission on whether they wished to proceed with their application or discontinue the matter. The correspondence advised that the application may be dismissed if no response was received by close of business 9 October 2023.

1. To date, the Applicant has not provided any further correspondence to the Commission.

1. 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”. Based on the material before the Commission, neither the Applicant nor South Street Auto Repairs appear to fall within the scope of these definitions.

1. In considering the provisions of the FW Act, I am persuaded that the Commission has no jurisdiction to determine the Applicant’s remedy for unfair dismissal as their 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 the circumstances, I have determined that the application has no reasonable prospect of success. The application is therefore dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR768399.

Printed by authority of the Commonwealth Government Printer

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