Maria Macarena Rubio Pastor v Department of Education

[2023] FWC 2611

[2023] FWC 2611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maria Macarena Rubio Pastor
v

Department of Education

(U2023/7599)

COMMISSIONER BISSETT MELBOURNE, 10 OCTOBER 2023

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

1. On 15 August 2023, Maria Macarena Rubio Pastor (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).

1. On 20 August 2023, the Commission emailed correspondence to the Applicant’s nominated email address advising that, based on the information provided in the Form F2 application, the Department of Education may not be a national system employer [the Applicant worked in Western Australia] and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with their application. The correspondence also advised that based on the information provided in the Form F2, the Applicant may not have served the minimum employment period. This correspondence asked the Applicant to advise the Commission within 14 days whether they wished to proceed with their matter.

1. On 21 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number to discuss the application. The Applicant did not answer the call. A voicemail message was left requesting that the Applicant contact the Commission. The matter number was also provided in this message.

1. On 25 August 2023, the Commission received email correspondence from the Applicant enquiring about wages and irregularities in her employment contract. On the same day, the Commission contacted the Applicant in response to the email enquiry and to discuss the issues with her matter. The Applicant requested that the Commission staff member contact her at a later time. The Commission then made two further attempts to contact the Applicant at a later time, however, the Applicant could not be reached. A voicemail message was left requesting that the Applicant contact the Commission.

1. Later that day, the Commission again emailed correspondence to the Applicant’s nominated email address advising that, based on the information contained in the application, the Department of Education may not be a national system employer. This correspondence advised the Applicant to urgently seek further advice on the issue, as the Commission may not have jurisdiction to deal with their application. The correspondence also advised that, based on the information provided in the Form F2, the Applicant may not have served the minimum employment period. That correspondence asked the Applicant to advise the Commission within 14 days whether they wished to proceed with their matter. This correspondence warned that the application may be dismissed if no response was received. An SMS notification was also sent to the Applicant’s nominated telephone number advising that there was a problem with their application and requested that they contact the Commission.

1. As no further correspondence was received, on 6 September 2023, the Commission made a further attempt to contact the Applicant on their nominated telephone number. The Applicant did not answer the call. A voicemail message was left advising that the matter was at risk of being dismissed and requested a call back to the Commission. The matter number was also quoted in the voicemail.

1. To date, the Applicant has not provided any further correspondence to the Commission.

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”. The Applicant and Department of Education do not respectively fall within the scope of this definition.

1. 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 their 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. The application is therefore dismissed under s.587(1)(c) of the FW Act.

COMMISSIONER
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