Kara Johansen v Queensland Health T/A South West Hospital and Health Service Roma

[2018] FWC 6563

[2018] FWC 6563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kara Johansen
v
Queensland Health T/A South West Hospital and Health Service Roma
(U2018/8909)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 30 August 2018, Ms Kara Johansen made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Johansen named Queensland Health T/A South West Hospital and Health Service Roma as her former employer.

[2] On 3 September 2018, the Fair Work Commission (the Commission) contacted Ms Johansen regarding her employment and enquired whether Queensland Health T/A South West Hospital and Health Service Roma was a national system employer. Ms Johansen advised she would seek legal advice and telephone the Commission once she had sought that advice. Email correspondence was also sent to Ms Johansen confirming that employees must be employed by a national system employer to make an application for unfair dismissal remedy and it appeared South West Hospital and Health Service Roma may not be a national system employer. Ms Johansen was advised to seek further advice and further, that if she did not contact the Commission within 14 days, her application may be dismissed.

[3] Further correspondence was sent to Ms Johansen on 17 September 2018, noting that unless advice was received by the Commission within seven days that she wished to proceed with the application, her application would be dismissed.

[4] On 23 October 2018, a final attempt to contact Ms Johansen via telephone was made and a voicemail message was left seeking a return call.

[5] To date, Ms Johansen has not responded to the Commission’s correspondence.

[6] The unfair dismissal provisions under the Act are contained in Part 3-2. Under Part 3-2, ‘employee’ means a national system employee and ‘employer’ means a national system employer. 1 A national system employee is defined at s.13 of the Act as follows:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[7] A national system employer is relevantly defined as follows at s.14 of the Act:

“14  Meaning of national system employer

…

Particular employers declared not to be national system employers

(2)  Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a)  that employer:

(i)  is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii)  is a body established for a local government purpose by or under a law of a State or Territory; or

(iii)  is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b)  that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c)  an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

…

Endorsement of declarations

(4)  The Minister may, in writing:

(a)  endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b)  revoke or amend such an endorsement.

…”

[8] I am satisfied that South West Hospital and Health Service Roma, named as the employer by Ms Johansen, is the same entity as South West Hospital and Health Service. Ms Johansen listed the South West Hospital and Health Service’s post office box in Roma as the Respondent’s postal address in her Form F2 – Unfair Dismissal Application.

[9] I am satisfied that South West Hospital and Health Service is a body established for a public purpose by or under a law of a State or Territory. 2 The Industrial Relations Regulation 2011 (Qld) declares South West Hospital and Health Service not to be a national system employer.3 Pursuant to s.14(4)(a) of the Act, the Fair Work (State Declarations - employer not to be a national system employer) Endorsement 2012 (No.2) declared South West Hospital and Health Service not to be a national system employer from 1 August 2012.

[10] In considering the above, I am satisfied that the Commission has no jurisdiction to determine Ms Johansen’s application for unfair dismissal remedy as South West Hospital and Health Service was not a national system employer at the time of Ms Johansen’s dismissal and therefore she was not a national system employee for the purpose of Part 3-2 of the Act at the relevant time.

[11] Section 587(1) of the Act provides as follows:

“(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.”

[12] Having regard to the circumstances of this matter, I am satisfied the application has no reasonable prospects of success. As such, the application is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR701712>

 1   Fair Work Act 2009, s.380.

 2   Fair Work Act 2009, s.14(2)(a)(i).

 3   Fair Work Act 2009, s.14(2)(b).