Duncan Campbell Gordon McPhee v Department of Education QLD
[2023] FWC 559
•7 MARCH 2023
| [2023] FWC 559 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Duncan Campbell Gordon McPhee
v
Department of Education QLD
(U2023/545)
| COMMISSIONER BISSETT | MELBOURNE, 7 MARCH 2023 |
Application for an unfair dismissal remedy
On 20 January 2023 Mr Duncan Campbell Gordon McPhee 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).
On 24 January 2023 the Commission attempted to contact Mr McPhee via his nominated telephone number to discuss his application. Mr McPhee did not answer the call. A voicemail message was left requesting Mr McPhee contact the Commission as employees who were not employed by a national system employer are ineligible to make an application for unfair dismissal remedy.
Later that day the Commission emailed correspondence to Mr McPhee’s nominated email address advising that, based on the information contained in the application, the Department of Education QLD 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 McPhee 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 Mr McPhee’s nominated telephone number advising there was a problem with his application and requesting that he contact the Commission.
On 2 February 2023 Mr McPhee sent two emails to the Commission requesting if he could be contacted and be provided with further information about his application. The Commission attempted to contact Mr McPhee via his nominated telephone number to discuss his application. Mr McPhee did not answer the call. A voicemail message was left requesting Mr McPhee contact the Commission.
As the required information was not received, on 7 February 2023 the Commission attempted to contact Mr McPhee on his nominated telephone number. Mr McPhee did not answer the call. A voicemail message was left requesting Mr McPhee contact the Commission.
To date, Mr McPhee 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”. Mr McPhee and Department of Education QLD do not respectively fall within the scope of this definition.
In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine Mr McPhee’s application for unfair dismissal as his 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.
In this circumstance, I have determined that the application was not made in accordance with the FW Act. The application is therefore dismissed under s.587(1)(c) of the FW Act.
COMMISSIONER
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