Jason Chandler v Coastline Mower World T/A Coastline Mowers

[2017] FWC 6373

[2017] FWC 6373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Jason Chandler
v
Coastline Mower World T/A Coastline Mowers
(C2017/4342)

DEPUTY PRESIDENT BULL PERTH, 6 DECEMBER 2017

Application to deal with an unlawful termination dispute

[1] On 7 August 2017, Mr Jason Chandler (the applicant/Mr Chandler) made an application for the Fair Work Commission (the Commission) to deal with an unlawful termination dispute under s.773 of the Fair Work Act 2009 (FW Act).

[2] The respondent, named on the applicant’s application as Coastline Mower World T/A Coastline Mowers, sought an extension to file its response to the application due to the owner of the business being overseas on leave.

[3] The extension was granted, and the matter was listed for a conference, to occur on 22 September 2017.

[4] The respondent filed its Form F9A employer response to the application on 15 September 2017. In its response it indicated the legal name of the business was Bilmar Investment Pty Ltd T/A Coastline Mower World.

[5] On 22 September 2017 the respondent was present for the conference however the applicant did not attend. The Commission attempted to contact the applicant via phone on the number provided on the application form, however the applicant was not able to be contacted. As a result of the applicant’s non-attendance, the conference could not proceed.

Jurisdiction

[6] The Commission sought to clarify the identity of the employer to satisfy itself that it has jurisdiction to hear this matter, taking into account s.723 of the FW Act which states:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

[7] General protections court applications may be made by employees in relation to action taken by a constitutionally covered entity. 1

[8] The FW Act states at s.338(2):

“(2) Each of the following is a constitutionally-covered entity :

(a) a constitutional corporation;

(b) the Commonwealth;

(c) a Commonwealth authority;

(d) a body corporate incorporated in a Territory;

(e) an organisation.”

[9] A constitutional corporation is defined in s.12 of the FW Act as follows:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies”

[10] The Australian Constitution defines constitutional corporations as ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. 2

[11] The respondent submitted that it is an incorporated entity, as set out in its employer response form, being Bilmar Investment Pty Ltd. The company engages in trade, providing goods and services for reward, in its mowing business activities.

[12] On the information provided by the employer, I am satisfied the employer is a constitutionally covered entity.

[13] The conduct that may be subject to a general protections court application includes the grounds of unlawful termination in s.772. Where an employee is employed by constitutional corporation, and has made an application in relation to conduct of a nature dealt with in s.772, the employee is expressly excluded from making an unlawful termination application under s.773, where they would be entitled to make a general protections application under s.365 of the FW Act.

[14] I am satisfied the employer is a constitutionally covered entity and that on the basis of the actions alleged by the applicant, the applicant could have made a general protections application. As such, the Commission does not have jurisdiction to deal with the application.

Contacting the Applicant

[15] The Commission sent an email to the applicant on 22 September 2017 requesting he contact the Commission regarding his application by 29 September 2017. The applicant was advised that failure to contact the Commission as requested may result in the application being dismissed.

[16] On 3 October 2017 the Commission attempted to contact the applicant via phone to follow up on the email correspondence sent on 22 September 2017, to which no reply had been received. A voice mail was left for the applicant alerting him to the email sent on the 22 September and requesting he contact the Commission.

[17] On 3 November 2017 the Commission made a further unsuccessful attempt to contact the applicant via telephone and a voice message was left advising the applicant that failure to contact the Commission may result in his application being dismissed.

[18] To date the applicant has not contacted or provided any response to the Commission.

Dismissing applications

[19] Section 587 of the FW Act deals with dismissing applications:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[20] On the information before the Commission I have found that the applicant was entitled to make a general protections application, and therefore must not make an unlawful termination application.

[21] The application has not been made in accordance with the FW Act and pursuant to s.587(1)(a), the application is dismissed.

DEPUTY PRESIDENT

 1 Section 338, Fair Work Act 2009

 2   Australian Constitution s.51(xx)

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