Elena Schwand v NSW Health Service Southern NSW, SNSW LHD Regional Assessment Service

[2021] FWC 6492

[2021] FWC 6492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elena Schwand
v

NSW Health Service - Southern NSW, SNSW LHD Regional Assessment Service

(U2021/9267)

COMMISSIONER BISSETT MELBOURNE, 1 DECEMBER 2021

Application for relief from unfair dismissal- national system employer – dismissal under s.587 at the Commission’s initiative.

1. On 16 October 2021, Ms Elena Schwand (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

1. On 20 October 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission. The Applicant subsequently returned the Commission’s call and was advised that based on the information contained in her application she was not eligible to make an unfair dismissal application. The Applicant said she would think about whether or not to proceed with the application.

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, NSW Health Service – Southern NSW, SNSW LHD Regional Assessment Service (Respondent) 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 the application. The correspondence also required the Applicant to advise the Commission within 14 days whether she wished to proceed with the application and warned that the application may be dismissed if no response was received.

1. On 26 October 2021 the Applicant wrote to the Commission advising that she wished to proceed with her application.

1. On 27 October 2021 the Commission telephoned the Applicant to discuss her request to proceed with the application. It was suggested that she seek legal advice on the matter.

1. On 16 November 2021 the Commission wrote to the Applicant advising that her application had been referred to Commissioner Bissett, National Practice Leader, Unfair Dismissals. The correspondence advised that the Commission does not have jurisdiction to deal with an application where the employer is not a National System Employer. The correspondence also acknowledged that the Applicant had indicated that she wished to proceed with her application however in order for this to occur she would need to convince the Commission that the Respondent is a National System Employer and that this will have to be dealt with and decided before any claim in relation to the Applicant’s dismissal can be heard. The correspondence directed the Applicant to advise the Commission by 22 November 2021 if she wished to proceed with the application. No response was received.

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”. The Applicant and the Respondent do not respectively fall within the scope of this definition.

1. In considering the provisions of the FW Act, 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.

1. Section 587(1) of the FW Act provides as follows:

s.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 prospects of success…

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

1. 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] to this effect will be issued with this decision

COMMISSIONER

[1] PR736340

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