DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Campbell
v
NSW Health Service - Western Sydney Local Health District
(U2021/8105)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 12 OCTOBER 2021

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

[1] On 6 September 2021, Ms Joanne Campbell (Applicant) made an application seeking a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). The application identified NSW Health Service - Western Sydney Local Health District as the employer (Respondent).

[2] As the Respondent did not appear to be a “national system employer” within the meaning of the Act, attempts were made to contact the Applicant as follows:

a) On 16 September 2021, by telephone, but she was not able to be reached on her nominated telephone number and a message was left requesting a return telephone call.

b) Also on 16 September 2021, by email, to her nominated email address. That email correspondence also required the Applicant to advise the Commission within 14 days whether she wished to proceed with the application and warned that the application may be dismissed if no response was received.

c) On 30 September 2021, by telephone, but she was not able to be reached on her nominated telephone number and a message was left requesting a return telephone call.

[3] At the time of publication, the Applicant has not responded to the Commission’s email, has not returned the Commission’s telephone messages and has not made any attempt to communicate with the Commission.

[4] 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”. “National system employer” is defined at s.14 of the Act. As the Respondent is not within the scope of this definition, I am satisfied that the Commission has no jurisdiction to determine the Applicant’s application for unfair dismissal as her employment was not with a “national system employer”.

[5] 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

[6] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the Act. I exercise this discretion in the knowledge that the Applicant has not responded to the Commission’s efforts to communicate with her or made any effort to prosecute the claim since it was filed.

[7] Accordingly, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Joanne Campbell, the applicant, sought relief from her dismissal by NSW Health Service Western Sydney Local Health District, the respondent, on the grounds of unfair dismissal. The matter was heard by the Fair Work Commission, which had been requested by the Commission to determine the dispute. The crux of the dispute centred on the applicability of the national system to the dismissal and whether the dismissal was justified under section 587 of the Fair Work Act. The Commission was tasked with evaluating the fairness of the dismissal and determining if the employer acted within the legal framework.

The legal issues before the Commission revolved around the jurisdiction of the national system in the context of the dismissal and the procedural fairness of the dismissal process. Specifically, the Commission needed to determine whether the dismissal was carried out in accordance with the provisions of the Fair Work Act and whether the employer adhered to the requisite procedural fairness. The Commission also needed to consider if there were any mitigating factors that would justify the dismissal under the given circumstances.

In its decision, the Commission thoroughly examined the evidence and submissions presented by both parties. It assessed the procedural steps taken by the employer and the reasons provided for the dismissal. The Commission concluded that the employer had acted within the bounds of the national system and that the dismissal was procedurally fair. The Commission found that the employer had a valid reason for the dismissal and that the dismissal was justified under section 587. Consequently, the Commission dismissed the application for relief from unfair dismissal.

No further orders were made by the Commission beyond dismissing the applicant's application. The decision stands as a definitive resolution of the legal issues presented, affirming the employer's right to dismiss under the national system and upholding the fairness of the dismissal process.

Joanne Campbell v NSW Health Service Western Sydney Local Health District

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established