Deborah Bonne v Department of Justice and Attorney-General
[2022] FWC 2271
•26 AUGUST 2022
| [2022] FWC 2271 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Deborah Bonne
v
Department of Justice and Attorney-General
(U2022/7951)
| COMMISSIONER BISSETT | MELBOURNE, 26 AUGUST 2022 |
Application for relief from unfair dismissal- national system employer – dismissal under s.587 at the Commission’s initiative.
On 31 July 2022, Ms Deborah Bonne (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).
From the information provided in the Form F2 – unfair dismissal application it appeared that the Department of Justice and Attorney-General may not be a national system employer. The application fee has also not been paid nor a fee waiver form provided.
On 2 August 2022, the Commission attempted to contact the Applicant via her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left explaining to the Applicant that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy to the Fair Work Commission due to jurisdictional issues. The Applicant was directed to contact the Queensland Industrial Relations Commission (QIRC) to commence a proceeding.
Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that based on the information contained in the application the Department of Justice and Attorney-General 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 the Applicant 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.
The Applicant contacted the Commission’s Helpline on 2 August 2022 to pay the outstanding application filing fee. However, she had not reviewed the correspondence the Commission emailed earlier that day. The Commission encouraged the Applicant to review the information sent as she may not have lodged the correct application and to contact the QIRC on their telephone number. The Applicant advised she will contact the Commission if she wishes to discontinue her matter.
On 5 August 2022, the Commission received correspondence from the Department of Justice and Attorney-General raising jurisdictional objections to the application the Applicant had lodged.
As the required information was not received from the Applicant, on 18 August 2022 the Commission attempted to contact the Applicant on her nominated telephone number. The Applicant did not answer the call. A detailed voicemail message was left requesting the Applicant contact the Commission by close of business 18 August 2022 and instruct on how to proceed with her matter. Otherwise, the matter may be at risk of being dismissed and a decision may be published on the Commission’s website. The voicemail reiterated the Applicant has filed her application under the wrong jurisdiction and to contact the QIRC.
To date, the Applicant 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”. The Applicant and Department of Justice and Attorney-General do not respectively fall within the scope of this definition.
In considering the provisions of the FW Act, and the advice from Department of Justice and Attorney-General, I am satisfied that the Commission has no jurisdiction to determine the Applicant’s application for unfair dismissal as her 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.
Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An order[1] giving effect to this decision will be issued shortly.
COMMISSIONER
[1] PR745195
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