Julie Broekhuyse v NSW Health

[2021] FWC 5964

[2021] FWC 5964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
s.365—General protections

Julie Broekhuyse
v
NSW Health
(U2021/7676)

Julie Broekhuyse
v
NSW Health incl. Southern NSW LHD
(C2021/5215)

COMMISSIONER BISSETT MELBOURNE, 7 OCTOBER 2021

Application for an unfair dismissal remedy – application to deal with contraventions involving dismissal – national system employer – dismissal under s.587 at the Commission’s initiative.

[1] On 31 August 2021 Ms Julie Broekhuyse 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). On 1 September 2021 Ms Broekhuyse made a further application to the Commission alleging that she had been dismissed in breach of the general protections provisions pursuant to s.365 of the FW Act. Both applications related to the same dismissal.

[2] On 31 August 2021 the Commission attempted to contact Ms Broekhuyse on her nominated telephone number to discuss her unfair dismissal application. Ms Broekhuyse did not answer the call. A voicemail message was left requesting that she contact the Commission to discuss her unfair dismissal application as it was not apparent her employer was a national system employer.

[3] The following day the general protections application was lodged.

[4] Based on the information provided on the application forms for both applications, it appeared that the Respondent was not a national system employer. At 10.30 am on 31 August 2021 correspondence was emailed to Ms Broekhuyse concerning both applications. That correspondence advised Ms Broekhuyse that the Respondent may not be anational system employer and to urgently seek further advice on this issue as the Commission may not have jurisdiction to deal with her applications. The correspondence required Ms Broekhuyse to advise the Commission within 14 days whether she wished to proceed with her applications and warned that the applications may be dismissed if no response was received.

[5] Later that day, the Commission attempted to contact Ms Broekhuyse on her nominated telephone number to discuss both applications as it was also apparent to the Commission that Ms Broekhuyse had lodged two applications with respect to the same dismissal. Ms Broekhuyse did not answer the call. A detailed voicemail message was left explaining the Commission cannot hear multiple applications concerning the same dismissal and requesting Ms Broekhuyse to urgently return the call. Email correspondence with respect to both applications in relation to this issue was also sent to Ms Broekhuyse on this day.

[6] On 13 September 2021 the Commission contacted Ms Broekhuyse on her nominated telephone number with respect to the correspondence sent on 1 September advising that the Respondent may not a national system employer. Ms Broekhuyse advised she had not yet checked her email. The Commission advised that that by 15 September 2021 the 14 day time limit provided in the correspondence will have passed, and the matters may be dismissed on this date.

[7] On 15 September 2021 the Commission attempted to contact Ms Broekhuyse on her nominate telephone number, however she did not answer the call. A voicemail message was left explaining that the Commission cannot hear two applications with respect to the same dismissal and that it appeared neither application may be able to be accepted by the Commission as the Respondent did not appear to be a national system employee.

[8] Later that day Ms Broekhuyse emailed the Commission with respect to correspondence sent on 31 August 2021 regarding the unfair dismissal application advising that she could not view the word document on her phone. The correspondence sent on 1 September 2021 regarding the national system employer issue was not referred to in her email.

[9] On 16 September 2021 further correspondence was emailed to the applicant concerning both applications, again advising the Respondent may not be anational system employer and to urgently seek further advice on this issue as the Commission may not have jurisdiction to deal with her applications. The correspondence required Ms Broekhuyse to advise the Commission by 17 September 2021 whether she wished to proceed with her application and warned that the application may be dismissed if no response was received.

[10] To date, Ms Broekhuyse has not provided any further information or further responded to correspondence or phone calls from the Commission.

[11] 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”. Ms Broekhuyse and NSW Health/ NSW Health incl. Southern NSW LHD do not respectively fall within the scope of this definition.

[12] In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine Ms Broekhuyse’s application for unfair dismissal or her application to deal with contraventions involving dismissal as her employment was not with a national system employer.

[13] 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.

[14] Having regard to the circumstances of this matter, I am satisfied that the applications were not made in accordance with the FW Act. For this reason, the applications are dismissed under s.587(1)(a) of the FW Act. Separate orders 12 to this effect will be issued with this decision.

COMMISSIONER

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