Daniel Perri v South Western Sydney Local Health District

[2022] FWC 241

[2022] FWC 241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Perri
v
South Western Sydney Local Health District
(U2022/459)

COMMISSIONER BISSETT MELBOURNE, 10 FEBRUARY 2022

Application for an unfair dismissal remedy

[1] On 7 January 2022 Mr Daniel Perri 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 alleges he was unfairly dismissed by South Western Sydney Local Health District (the Respondent) on 19 December 2021.

[2] On 10 January 2022 the Commission attempted to contact Mr Perri on his nominated telephone number to discuss his application. Mr Perri did not answer the call. A voicemail message was left advising Mr Perri that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy. Further, it was advised Mr Perri may wish to contact the NSW Industrial Relations for further assistance. The application number and Fair Work Commission contact details were provided should Mr Perri wish to contact the Commission

[3] Later that day, the Commission emailed correspondence to Mr Perri’s nominated email address advising that based on the information contained in the application the South Western Sydney Local Health District 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 Perri 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.

[4] As the required information was not received, on 24 January 2022 the Commission attempted to contact Mr Perri on his nominated telephone number. Mr Perri did not answer the call. A voicemail message was left advising Mr Perri that it appeared the Respondent was not a National System Employer and that he may wish to seek legal advice. Contact details for the Fair Work Commission and application number were provided should he wish to contact the Commission.

[5] To date, Mr Perri has not contacted the Commission or provided any further information.

[6] 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 Perri and South Western Sydney Local Health District do not respectively fall within the scope of this definition.

[7] In considering the provisions of the FW Act, in addition to the State Declaration, I am satisfied that the Commission has no jurisdiction to determine Mr Perri’s application for unfair dismissal as his employment was not with a national system employer.

[8] 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.

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

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

COMMISSIONER

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