Gareth Peck v NSW Health Hunter New England Local Health District

[2022] FWC 64

[2022] FWC 64

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gareth Peck

v

NSW Health - Hunter New England Local Health District

(U2021/11737)

COMMISSIONER BISSETT MELBOURNE, 18 JANUARY 2022

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

1. On 16 December 2021, Mr Gareth Peck (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).

1. From the information provided in the Form F2 – unfair dismissal application it appeared that NSW Health – Hunter New England Local Health District may not be a national system employer.

1. On 17 December 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to discuss his 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 – Hunter New England Local Health District 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 he wished to proceed with his application and warned that the application may be dismissed if no response was received.

1. As the required information was not received, on 11 January 2022, the Commission made a final attempt to contact the Applicant on his nominated telephone number to discuss his application. The Applicant failed to answer the call. A voicemail message was left requesting that he contact the Commission by close of business on 12 January 2022 as his application may be at risk of being dismissed.

1. To date, the Applicant has not contacted the Commission or provided any further information.

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 NSW Health - Hunter New England Local Health District 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 his employment was not with a national system employer.

1. 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 prospects of success.

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] giving effect to this decision will be issued shortly.

COMMISSIONER

[1] PR737526

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