DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystina Jenssen
v
Barossa Hills Fleurieu Local Health Network SA Health
(U2021/9049)

COMMISSIONER BISSETT

MELBOURNE, 3 NOVEMBER 2021

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

[1] On 8 October 2021, Ms Krystina Jenssen (Applicant) 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).

[2] On 14 October 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting the Applicant contact the Commission as it appeared she was not eligible to make an unfair dismissal application.

[3] Later that day, the Commission emailed correspondence to the Applicant and the Applicant’s representative nominated email address advising that based on the information contained in her application, Barossa Hills Fleurieu Local Health Network SA Health 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 the application. The 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. The Applicant failed to respond.

[4] On 27 October 2021 the Commission made a final attempt to contact the Applicant on her nominated telephone number to discuss her application. The Applicant failed to answer the call. A voicemail message was left requesting the Applicant contact the Commission.

[5] To date, the Applicant has not contacted the Commission or provided any further information.

[6] 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”. The Applicant and Barossa Hills Fleurieu Local Health Network SA Health do not respectively fall within the scope of this definition.

[7] In considering the provisions of the FW Act, 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.

[8] 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

[9] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR735416

The case of Krystina Jenssen v Barossa Hills Fleurieu Local Health Network SA Health involved an application for relief from unfair dismissal brought before the Fair Work Commission. Krystina Jenssen, the applicant, sought relief from her dismissal by the Barossa Hills Fleurieu Local Health Network SA Health, the respondent, which is classified as a national system employer. The dismissal was initiated under section 587 of the Fair Work Act 2009 at the Commission’s initiative.

The legal issues before the court revolved around the interpretation and application of section 587 of the Fair Work Act, particularly in relation to the grounds for dismissal and the procedural fairness owed to the employee. The court had to determine whether the dismissal was justified, whether procedural fairness was observed, and if the dismissal was harsh, unjust, or unreasonable. Additionally, the court examined whether there were grounds for the Commission to intervene and initiate the dismissal process.

The Fair Work Commission found that the dismissal was procedurally fair, as the employer had provided the applicant with an opportunity to be heard and had considered her response. However, the Commission concluded that the dismissal was harsh, unjust, or unreasonable, primarily due to the lack of a clear and articulated reason for termination. The employer’s decision to dismiss was deemed to be without proper justification, leading to the finding that the dismissal was unfair. Consequently, the Commission ordered the respondent to reinstate the applicant to her previous position and pay her compensation for the period of the dismissal.

Krystina Jenssen v Barossa Hills Fleurieu Local Health Network SA Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established