Erica Mejia v Extended stay America South T/A Hotel

[2019] FWC 1293

[2019] FWC 1293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erica Mejia
v
Extended stay America South T/A Hotel
(U2018/13486 and U2019/70)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 28 December 2018, Ms Erica Mejia made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Mejia named Extended stay America South T/A Hotel (ESA) as her former employer. The contact details recorded for the contact person at ESA suggested the individual was located in the United States of America (USA). Six days later, Ms Mejia filed another application for unfair dismissal remedy (U2019/70) in substantially the same terms.

[2] Following receipt of the first application, on 31 December 2018 correspondence was sent to Ms Mejia which advised it appeared her matter related to an employer operating in California, USA. Ms Mejia was asked to advise whether the application had been filed in error or in the event she believed the Fair Work Commission (the Commission) had jurisdiction to hear her matter, to provide further details about the employer.

[3] On 1 January 2019, Ms Mejia wrote to the Commission advising “I don't want to discontinue I'm not sure who to send this to for my state California…”

[4] The Commission subsequently sent numerous emails to Ms Mejia indicating that it was not affiliated with any office in California. It was noted that employees must be employed by a national system employer to make an application for unfair dismissal remedy and based on the information she had provided, it appeared the Commission did not have jurisdiction to deal with her matter. Ms Mejia was advised to urgently seek further advice in her country of residence and the contact details for Legal Aid California were provided to her on multiple occasions. Ms Mejia was also advised that if no contact was made with the Commission, her application may be dismissed without further notice.

[5] To date, Ms Mejia has not responded to the Commission’s correspondence.

[6] The unfair dismissal provisions under the Act are contained in Part 3-2. Under Part 3-2, ‘employee’ means a national system employee and ‘employer’ means a national system employer. 1 A national system employee is defined at s.13 of the Act as follows:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[7] A national system employer is relevantly defined as follows at s.14 of the Act:

“14  Meaning of national system employer

(1)  A national system employer is:

(a)  a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b)  the Commonwealth, so far as it employs, or usually employs, an individual; or

(c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d)  a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i)  a flight crew officer; or

(ii)  a maritime employee; or

(iii)  a waterside worker; or

(e)  a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f)  a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”

[8] A constitutional corporation is “a corporation to which paragraph 51(xx) of the Constitution applies.” 2 The Australian Constitution defines constitutional corporations as ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. Based on the material before me and a search of the ASIC registers, it appears ESA is a foreign corporation and therefore would be a national system employer to the extent it employs employees to perform work in Australia. I am not satisfied Ms Mejia performed work in Australia. She has recorded both her home address and that of her previous employer as in the USA. The ESA contact person, who also appears to have an address in the USA, is the same person described by Ms Mejia as having terminated her employment.

[9] In considering the above, I am satisfied that the Commission has no jurisdiction to determine Ms Mejia’s application for unfair dismissal remedy as ESA was not a national system employer at the time of Ms Mejia’s dismissal and therefore she was not a national system employee for the purpose of Part 3-2 of the Act at the relevant time.

[10] Section 587(1) of the Act provides as follows:

“(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.”

[11] Having regard to the circumstances of this matter, I am satisfied the application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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<PR705362>

 1   Fair Work Act 2009, s.380.

 2   Ibid s.12.