Georgia Kalis v Department of Education

[2023] FWC 338

[2023] FWC 338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Georgia Kalis

v

Department of Education

(U2023/437)

COMMISSIONER BISSETT MELBOURNE, 10 FEBRUARY 2023

Application for an unfair dismissal remedy – non-national system employer – dismissal under s.587 at the Commission’s initiative

1. On 17 January 2023 Ms Georgia Kalis 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). Ms Kalis alleged she was unfairly dismissed by “Department of Education” in New South Wales.

1. On 18 January 2023 the Commission contacted Ms Kalis via her nominated telephone number to discuss her application. The Commission advised Ms Kalis that employees who were not employed by a national system employer are ineligible to make an application for unfair dismissal remedy. Ms Kalis advised she would seek independent legal advice and contact the Commission to confirm whether she would proceed with her application.

1. Later that day the Commission emailed correspondence to Ms Kalis’s nominated email address advising that, based on the information contained in the application, the Department of Education may not be a national system employer and to seek further advice on this issue, as the Commission may not have jurisdiction to deal with her application. The correspondence also required Ms Kalis 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 Ms Kalis’s nominated telephone number advising there was a problem with her application and requesting that she contact the Commission.

1. As the required information was not received, on 30 January 2023 the Commission attempted to contact Ms Kalis on her nominated telephone number. Ms Kalis did not answer the call. A voicemail message was left requesting that Ms Kalis contact the Commission.

1. To date, Ms Kalis 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”. Ms Kalis and Department of Education 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 Ms Kalis’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:

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.

1. In this circumstance, I have determined that the application was not made in accordance with the FW Act. I therefore order that the application is dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER

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