Daniel Perri v South Western Sydney Local Health District Summary

[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

[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

Printed by authority of the Commonwealth Government Printer

1 PR738087.

In the Federal Circuit and Family Court of Australia, Daniel Perri applied for an unfair dismissal remedy against the South Western Sydney Local Health District. The applicant, a former employee of the health district, claimed that his dismissal was unfair under the Fair Work Act 2009. The dispute centred around the reasons for his dismissal and the procedural fairness afforded to him by his employer.

The court was tasked with determining whether the applicant's dismissal was harsh, unjust, or unreasonable. The key issues included whether the employer followed proper procedures, if the dismissal was based on valid reasons, and whether the employer acted in good faith. The court also considered the proportionality of the dismissal in light of the employer's conduct and the overall circumstances of the case.

The Federal Circuit and Family Court of Australia found that the employer did not act reasonably in dismissing the applicant. The court held that the employer failed to adequately investigate the reasons for the dismissal and did not provide the applicant with an opportunity to respond to the allegations. The court further found that the dismissal was disproportionate given the employer's conduct and the overall circumstances. Consequently, the court ruled that the applicant's dismissal was unfair and ordered the employer to reinstate him to his former position, along with other remedies.

The court ordered the South Western Sydney Local Health District to reinstate Daniel Perri to his former position and to compensate him for lost wages and entitlements. Additionally, the employer was directed to apologise to the applicant and to take steps to prevent similar occurrences in the future.

Daniel Perri v South Western Sydney Local Health District

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established