Helen Au v Department of Education

[2024] FWC 825

[2024] FWC 825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Helen Au
v

Department of Education

(U2024/1545)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2024

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

1. On 13 February 2024, Ms Helen Au 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 Au named the Department of Education as the Respondent to her application (the Respondent). 

1. On 14 February 2024. the Commission attempted to contact Ms Au via her nominated telephone number to discuss her application. Ms Au did not answer the call. A voicemail message was left requesting that she call the Commission. The Commission also emailed correspondence to Ms Au’s nominated email address advising her that, based on the information contained in her Form F2 – Unfair Dismissal Application (Form F2) the Respondent may not be a national system employer and thus the Commission may not have the jurisdiction to deal with her matter. Ms Au was advised to urgently seek further advice on the issue and was required to advise the Commission within 14 days whether she wished to proceed with her application. The correspondence warned that her application may be dismissed if no response was received.

1. As the required information was not received, on 6 March 2024 the Commission attempted to contact Ms Au on her nominated telephone number. A voicemail message was left requesting that Ms Au call the Commission by close of business on 7 March 2024. To date, Ms Au 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”. Based on the material before the Commission, neither Ms Au nor the Respondent appear to fall within the scope of these definitions.

1. In considering the provisions of the FW Act, and based on the material before the Commission which discloses Ms Au is a resident of New South Wales, I am not satisfied that the Commission has jurisdiction to determine Ms Au’s remedy for unfair dismissal. Her employment would not seem to have been 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. As I have determined that the Commission does not have jurisdiction, I am satisfied the application has no reasonable prospects of success. The application is therefore dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR772916

Printed by authority of the Commonwealth Government Printer

<PR772915>