Emily Hopgood v South West Hospital and Health Service

[2023] FWC 3095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emily Hopgood

South West Hospital And Health Service

(U2023/9485)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 NOVEMBER 2023

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

On 3 October 2023, Emily Hopgood (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).

On 6 October 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising that, based on the information contained in the application, South West Hospital And Health Service 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. The correspondence warned that the application may be dismissed if no response was received. An SMS notification was also sent to the Applicant’s nominated telephone number advising that there was a problem with her application and requesting that she contact the Commission.

On 30 October 2023, 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 requesting the Applicant contact the Commission.

To date, the Applicant has not provided any further correspondence to the Commission.

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”. Based on the material before the Commission, neither the Applicant nor South West Hospital And Health Service appear to fall within the scope of these definitions.

In considering the provisions of the FW Act, I am persuaded that the Commission has no jurisdiction to determine the Applicant’s remedy for unfair dismissal as their 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 the circumstances, I have determined that the application has no reasonable prospect of success. The application is therefore dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR768635.

Printed by authority of the Commonwealth Government Printer

< PR768636>

Emily Hopgood sought relief from the Fair Work Commission for an alleged unfair dismissal by South West Hospital and Health Service. The matter was heard by Deputy President Clancy in Melbourne on 27 November 2023. The Applicant lodged an application for unfair dismissal under section 394 of the Fair Work Act 2009, but the Commission questioned whether South West Hospital and Health Service was a national system employer, as required by the Act. This was a crucial point of contention as the Fair Work Act applies specifically to national system employees and employers.

The legal issue before the Court was whether the Commission had jurisdiction to hear the Applicant's claim for unfair dismissal. Given that the Act applies only to national system employers and employees, and there was no evidence before the Commission that either the Applicant or South West Hospital and Health Service met this criteria, the Court needed to determine whether it had the authority to proceed with the case. The Applicant was given multiple opportunities to provide further information or clarification but did not respond to the Commission's communications.

The Court found that there was insufficient evidence to determine that either the Applicant or the employer was covered by the Fair Work Act. As such, the Court concluded that it lacked jurisdiction to hear the case. The Deputy President determined that the application had no reasonable prospect of success and dismissed the case under section 587(1)(c) of the Fair Work Act. Consequently, the Commission issued an order dismissing the Applicant's application for unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established