Katica (Kathleen) Anne Speciale v East Metropolitan Health Service

[2022] FWC 3385

[2022] FWC 3385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Katica (Kathleen) Anne Speciale
v

East Metropolitan Health Service

(U2022/11097)

COMMISSIONER BISSETT MELBOURNE, 29 DECEMBER 2022

Application for an unfair dismissal remedy

1. On 18 November 2022 Mrs Katica (Kathleen) Anne Speciale 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).

1. On 21 November 2022 the Commission contacted Mrs Speciale on her nominated telephone number to discuss her application. The Commission advised Mrs Speciale that employees who were not employed by a national system employer are ineligible to make an application for unfair dismissal remedy. Mrs Speciale was provided with contact details for free legal advice and advised that she has 14 days to inform the Commission as to whether she wishes to proceed with or discontinue her application.

1. Later that day the Commission emailed correspondence to Mrs Speciale’s nominated email advising that, on the basis of the information contained in the application, the East Metropolitan Health Service may not be a national system employer and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with her application. The correspondence also required Mrs Speciale 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.

1. As the required information was not received, on 5 December 2022 the Commission attempted to contact Mrs Speciale on her nominated telephone number. Mrs Speciale did not answer the call. A voicemail message was left requesting Mrs Speciale call the Commission to discuss if she wishes to proceed with or discontinue her matter and also advised that if she wishes to discontinue that she can do so by calling or by emailing the Commission. Mrs Speciale was also advised that if the Commission received no response by close of business on 6 December 2022, the application is likely to be dismissed and a decision published.

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

1. 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”. East Metropolitan Health Service is a health service provider within the Western Australia public health system. It does not fall within the scope of the definition of employer and Mrs Speciale therefore does not come within the scope of the definition of an employee.

1. I am satisfied that the Commission has no jurisdiction to determine Mrs Speciale’s application for unfair dismissal as her employment was not with a national system employer.

1. 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 prospect of success.

1. In this circumstance, I have determined that the application was not made in accordance with the FW Act.

1. As such, I order that the application be dismissed under s.587(1)(a) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR749299>