Mandy Brindley v Ida Curtois

[2021] FWC 4128

[2021] FWC 4128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mandy Brindley
v
Ida Curtois
(U2021/4536)

COMMISSIONER BISSETT MELBOURNE, 16 JULY 2021

Application for an unfair dismissal remedy.

[1] On 25 May 2021 Ms Mandy Brindley (the 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). Ms Brindley alleged she was unfairly dismissed by Ida Curtois (the Respondent) on 17 May 2021. The Applicant and Respondent are both based in Western Australia.

[2] On 27 May 2021 the Commission attempted to contact Ms Brindley’s representative Stephen Gaffney of Unfair Dismissal Experts Pty Ltd via telephone to discuss the application. Mr Gaffney did not answer the call. A voicemail message was left requesting he contact the Commission to discuss the requirements of the application and to inform him that employees not employed by a national system employer in Western Australia are ineligible to make an application for an unfair dismissal remedy in the Fair Work Commission.

[3] Later that day, the Commission emailed correspondence to both the Applicant and her representative Mr Gaffney to the nominated email addresses advising that, based on the information contained in the application, the Respondent 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 Ms Brindley and/or Mr Gaffney to advise the Commission within 14 days whether they wished to proceed with the application and warned that the application may be dismissed if no response was received.

[4] As the required information was not received, on 9 June 2021 the Commission attempted to contact Ms Brindley on her nominated telephone number. Ms Brindley did not answer the call. A voicemail message was left requesting Ms Brindley contact the Commission to discuss the application and to inform her that employees who were not employed by a national system employer are ineligible to make an application for an unfair dismissal remedy in the Commission.

[5] On 9 June 202, Ms Brindley contacted the Commission helpline to discuss the application requirements and correspondence she received regarding national system employment. The Applicant was advised that, based on the information received, the respondent appeared to be a sole trader in Western Australia and the applicant may not have met the requirements of the unfair dismissal application. It was suggested to the applicant that she seek legal advice for further guidance.

[6] On 15 June 2021 the Commission contacted Ms Brindley’s representative Stephen Gaffney of Unfair Dismissal Experts Pty Ltd via telephone number to discuss the application. Mr Gaffney requested that he be given until 16 June 2021 to respond to the Commission.

[7] On 14 July 2021 my chambers contacted the Applicant and her representative informing them that unless necessary information as to why the Commission has jurisdiction to hear the matter by 4.00 pm on Friday 16 July 2021 (Australian Eastern Standard Time) the application would be dismissed.

[8] Later that day Ms Brindley replied to the email, stating “I would still like you to go ahead if possible.”

[9] To date neither the Applicant nor her representative has provided the requested information.

[10] 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 Brindley and Ida Curtois do not respectively appear to fall within the scope of this definition.

[11] 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.

[12] Having regard to the circumstances of the matter, I have determined that the application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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