Heather Marie Watchman Lymburn v Clare and Gilbert Valleys Council

[2022] FWC 336

[2022] FWC 336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Heather Marie Watchman Lymburn
v

Clare And Gilbert Valleys Council

(U2022/1138)

DEPUTY PRESIDENT MANSINI MELBOURNE, 18 FEBRUARY 2022

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

1. On 26 January 2022, Heather Marie Watchman Lymburn made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

1. The application indicated that it was lodged some 43 days outside of the statutory timeframe at s.394(2) of the Act. Further, the Commission identified that the named respondent did not appear to be a “national system employer” as defined by the Act.

1. On 28 January 2022, the Commission made two attempts to contact Ms Lymburn on her nominated telephone number to discuss her application. Ms Lymburn could not be reached and a voicemail message was left requesting she contact the Commission to discuss her eligibility to make an application for unfair dismissal remedy.

1. Subsequently on 28 January 2022, the Commission sent correspondence to Ms Lymburn’s nominated email address. The correspondence outlined the nature of the jurisdictional issue as it related to whether the named respondent is a “national system employer” and provided sources of further information. Further, Ms Lymburn was requested to advise whether she wished to pursue or discontinue the claim by 11 February 2022. That correspondence also warned that if the Commission did not hear from Ms Lymburn by this time, her application may be dismissed without further notice.

1. In response, later on 28 January 2022, Ms Lymburn contacted the Commission by telephone. The jurisdictional issue was discussed, Ms Lymburn was encouraged to seek independent advice and was provided with contact information for the South Australian Employment Tribunal. Ms Lymburn was reminded to inform the Commission with her intentions regarding her application.

1. On 9 February 2022, as no further communication had been received from Ms Lymburn, the Commission attempted to contact Ms Lymburn on her nominated telephone number. Ms Lymburn did not answer the call. A voicemail message was left requesting she contact the Commission in relation to the matter and that the matter was at risk of being dismissed if no contact was made.

1. Since 28 January 2022 and at the time of this decision, Ms Lymburn has not contacted the Commission or provided any further information.

1. Division 1 of Part 3-2 of the Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Section 380 of the Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Section 14 defines a “national system employer”.

1. The Fair Work (State Declarations — employers not to be national system employers) Endorsement 2009 (State Declaration), declared that Clare and Gilbert Valleys Council was not a “national system employer” effective 1 January 2010.

1. In considering the provisions of the Act and the State Declaration, I am satisfied that the Commission has no jurisdiction to determine Ms Lymburn’s application for unfair dismissal as her employment was not with a “national system employer”.

1. Section 587(1) of the 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 the circumstances of this case, I have determined that the application has no reasonable prospects of success.

1. Consequently, the application is dismissed under s.587(1)(c) of the Act. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR738459.

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