Haytham Remawi v Regional Express Holdings Limited & Virgin Australia Airlines Pty Ltd

[2024] FWC 2276

[2024] FWC 2276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Haytham Remawi
v

Regional Express Holdings Limited & Virgin Australia Airlines Pty Ltd

(C2024/4997)

DEPUTY PRESIDENT BOYCE SYDNEY, 26 AUGUST 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – application not an ‘employee’ of Virgin Australia Airlines Pty Ltd – objection upheld – application against Virgin Australia Airlines Pty Ltd dismissed.

1. On 19 July 2024, Mr Haytham Remawi (Applicant), filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by Regional Express Holdings Limited (REX / First Respondent) on 15 July 2024 in contravention of Part 3-1 of the Act.

1. In his Form F8, the Applicant also names Virgin Australia Airlines Pty Ltd as a second respondent (Virgin / Second Respondent).[1]

1. The Form F8A response filed by Virgin raises an objection that the Applicant was not employed (or an ‘employee’) by Virgin.

1. The matter was allocated to my Chambers on 22 August 2024.  On that date, my Chambers sent the following email to the parties (at 4:11pm):

“Dear Parties

C2024/4997 - Mr Haytham Remawi v Virgin Australia Airlines Pty Ltd & Regional Express Holdings Limited

This matter has been allocated to Deputy President Boyce, and I send the following email on his behalf.

Having regard to the matters set out in the Form F8A filed by Virgin Australia Pty Ltd (Virgin) dated 15 August 2024, it is not apparent to the Deputy President that the Applicant was an employee of Virgin at any time between May and July 2024.  Indeed, it is noted that the Applicant contends that he was dismissed on 15 July 2024 by Regional Express Holdings Pty Ltd (REX), which REX denies.

If the Applicant was not an employee of Virgin, Virgin could not have dismissed the Applicant.  The requirement for a “dismissal” (within the meaning of s.12 and s.386 of the Fair Work Act 2009 (Act)) is a jurisdictional prerequisite to the making of a valid claim under s.365 of the Act. (see s.365(1)(a) of the Act).  The fact that the Applicant alleges that Virgin was involved or somehow had a hand in his dismissal by REX is irrelevant to this jurisdictional prerequisite.

It is noted that in the decision in Haytham M J Remawi v Virgin Australia Airlines Pty Ltd [2023] FWC 1501 (23 June 2023), it was found that the Applicant was dismissed by Virgin on 14 December 2022.  There is no evidence, nor is there any contention or suggestion, that the Applicant was ever reemployed by Virgin after this date.

In view of the foregoing, the Deputy President proposes to dismiss the Applicant’s claim as it concerns Virgin.

The Applicant is provided until no later than 5:00pm tomorrow (23/8/24) to make any submissions, or file any evidence, going directly (and only) to the issue as to whether he was, as a matter of fact, an “employee of Virgin at any time between May and July 2024”.

Thereafter the Deputy President will determine the issue in Chambers on the papers as it concerns Virgin.

Further email correspondence will be issued to the parties in relation to the Applicant’s claim against REX at a later time.

Yours faithfully”

1. The Applicant responded to the foregoing email at 9:40am on 23 August 2024.  Nothing in the Applicant’s email, or the attachments thereto, support a contention (let alone a finding), that the Applicant was employee of Virgin at any time between May and July 2024.  To the extent that the Applicant asserts that Virgin was involved or knowingly concerned in his purported dismissal by REX, that is a matter for a court of competent jurisdiction (if the Application, as it concerns his purported dismissal by REX, ever makes it to court).  It is not a matter for the Commission at this stage of proceedings in respect of the Application (as made under s.365 of the Act).

1. It follows that the Commission has no jurisdiction to deal with the Application as it concerns Virgin.  The Application as it concerns Virgin must therefore be dismissed.  I will issue an order contemporaneously with this decision dismissing the Application against Virgin, and have Virgin removed as a named respondent to these proceedings.

1. I note that REX also raises a jurisdictional objection to the Application, namely that the Applicant was not an employee of REX.  That jurisdictional objection remains a live issue, and will be dealt with separately.

DEPUTY PRESIDENT

[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009 (Act).

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