Jodie Harrison v Corrective Services NSW (community corrections)

[2024] FWC 1312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jodie Harrison
v

Corrective Services NSW (community corrections)

(U2024/3968)

DEPUTY PRESIDENT EASTON

SYDNEY, 20 MAY 2024

Application for an unfair dismissal remedy

On 6 April 2024 Mrs Jodie Harrison made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

On 11 April 2024 the Commission attempted to contact Mrs Harrison by telephone to discuss her application. Mrs Harrison did not answer the call. A voicemail message was left asking her to contact the Commission on the helpline number.

On 18 April 2024 the Commission sent correspondence to Mrs Harrison by email advising that, based on the information contained in the application, the Corrective Services NSW (community corrections) may not be a national system employer. Mrs Harrison was encouraged to seek advice on this issue, indicating that the Commission may not have jurisdiction to deal with her application. The correspondence also required Mrs Harrison to advise the Commission within 14 days whether she wished to proceed with her application. The correspondence warned that the application may be dismissed if no response was received. Mrs Harrison did not respond to this correspondence.

On 1 May 2024 the Commission attempted to contact Mrs Harrison by telephone. Mrs Harrison did not answer the call. A voice to text voicemail message was left asking Mrs Harrison to contact the Commission.

To date, Mrs Harrison has not contacted the Commission or provided any further information.

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”. Further, s.380 of the Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Mrs Harrison and Corrective Services NSW (community corrections) do not appear to fall within the scope of these definitions.

It seems likely that Mrs Harrison was a direct employee of the NSW Government. The NSW Government is not a National System Employer and Mrs Harrison has not provided any information, evidence or response to the contrary.

Section 587 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 prospects of success.

…

(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.

Mrs Harrison has had a fair opportunity to respond to the Commission’s concerns. In the circumstances I am satisfied that Mrs Harrison’s application has no reasonable prospects of success and that it is available and appropriate to dismiss her application under s.587(1)(c) of the Act.

The words, “without limiting when FWC may dismiss an application” in the chapeau of s.587(1) establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c). Mrs Harrison has not responded to the many attempts by the Commission to contact her. In this regard she has demonstrated an unwillingness to participate in proceedings commenced at her initiative (see Viavattene v Health Care Australia[2013] FWCFB 2532 at [39]). It is also available and appropriate to dismiss Mrs Harrison’s application for want of prosecution on my own initiative, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR775154).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jodie Harrison lodged an unfair dismissal application against Corrective Services NSW (community corrections) with the Fair Work Commission (FWC). The primary issue for the FWC was whether it had jurisdiction to hear the matter, as it was unclear whether Corrective Services NSW (community corrections) qualified as a national system employer under the Fair Work Act 2009 (the Act). The Act specifies that its provisions apply to national system employees and employers, but Corrective Services NSW (community corrections) and Mrs Harrison did not appear to meet these criteria. Further, there was a lack of response from Mrs Harrison to the Commission's attempts to contact her, raising concerns about the viability of the application.

The court considered that Mrs Harrison had ample opportunity to respond to the Commission's concerns and address the jurisdictional issues. Despite the Commission's efforts to reach out to her, Mrs Harrison did not respond, which led the Deputy President to conclude that her application had no reasonable prospects of success. The Deputy President noted that the Act does not limit the FWC's authority to dismiss an application under certain circumstances, including when the application is unlikely to succeed. Additionally, the lack of participation from Mrs Harrison in proceedings she initiated supported the decision to dismiss the application. The Deputy President also exercised the authority under section 587(3)(a) of the Act to dismiss the application on his own initiative due to the lack of prosecution.

In light of the above, the Deputy President dismissed Mrs Harrison's application for unfair dismissal. This decision was made in accordance with section 587(1)(c) of the Act, as the application had no reasonable prospects of success and was unlikely to succeed. Furthermore, an order was made to dismiss the application for want of prosecution under section 587(3)(a) of the Act.

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