Mark Flay v Victoria Police

[2025] FWC 559

[2025] FWC 559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Flay
v

Victoria Police

(U2025/126)

DEPUTY PRESIDENT BELL MELBOURNE, 26 FEBRUARY 2025

Application for an unfair dismissal remedy - applicant not eligible to make unfair dismissal application - dismissed pursuant to s.587(c) at Commission’s initiative.

1. On 5 January 2025, Mr Mark Flay made an application to the Fair Work Commission for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Flay alleges he was unfairly dismissed by Victoria Police from his role as an operational Police Officer on 17 November 2024.

1. Upon the matter being allocated to me, my Chambers emailed Mr Flay at his nominated email address about whether I have any power to hear his case. The correspondence stated (original emphasis, hyperlinks omitted):

“A person is entitled to protection from unfair dismissal if they are a national system employee.

In Victoria, law enforcement officers are employees outside the national system, and therefore not eligible to make an application for unfair dismissal.

The Deputy President draws your attention to an excerpt of page 33 of the Unfair dismissal benchbook on the Commission’s website regarding persons excluded from the Commonwealth unfair dismissal laws by operation of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Victorian Referral Act).

Victoria has also excluded the referral of matters related to the ‘termination of employment of law enforcement officers’. A law enforcement officer means:

• a member of the Police Force
• a Police Reservist
• a Protective Service Officer, or
• a Police Recruit.

A member of the Victorian Police Force who has been dismissed by the Chief Commissioner may apply to an Appeals Board for review of the dismissal order.

The above exclusions are mandated by section 3 of the Victorian Referral Act.

Several decisions of the Commission have found that a law enforcement officer was not protected from unfair dismissal and the Commission therefore has no jurisdiction: for example [2022] FWC 502 Biswas v Victoria Police; [2020] FWC 10 Mulder v Victoria Police.

Further information regarding eligibility to make an unfair dismissal application can also be found on the Commission’s website here.

As you were employed as an operational Police Officer (per your Form F2) it is the Deputy President’s preliminary view that the Commission does not have jurisdiction to hear your application.

The Deputy President is now considering whether to dismiss your application under s.587(1)(c) of the Fair Work Act 2009 (Cth) on the basis that it has no reasonable prospects of success.

Next steps

If you consider that the Deputy President’s preliminary view is incorrect, please provide your views – supported with any relevant material – by 4:00pm AEDT Thursday 20 February 2025. Subject to what you provide, the Deputy President will consider the next steps to be taken as appropriate, including giving the respondent an opportunity to provide any submissions.

If you no longer wish to pursue your application for unfair dismissal and do not intend to provide any material/response in regard to the above, please advise Chambers by reply email that you wish to discontinue, in which case the Deputy President will note your matter has been discontinued and he will close the file.”

1. There was no response to this correspondence, and on 21 February 2025 a further email was sent to Mr Flay stating:

“I refer to the above matter and below correspondence advising of the Deputy President’s preliminary view that the Commission does not have jurisdiction to hear your unfair dismissal application.

You were invited to provide your views – supported with any relevant material – by 4:00pm AEDT yesterday Thursday 20 February 2025 if you considered the Deputy President’s view to be incorrect.

As no response has been received, and Chambers has not been advised you wish to discontinue your application, the Deputy President will now proceed to determine whether to dismiss your application under s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success, on the material before him.

A copy of the Deputy President’s decision will be emailed to the parties, as well as published on the Fair Work Commission’s website.”

1. Victoria Police filed a Form F3 response, as it was required to do. Victoria Police identified Mr Flay’s position as a “Senior Constable” within Victoria Police. Victoria Police indicated its position that the Commission has no power to hear the case, essentially for the reasons in my email above.

1. Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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 prospects of success.”

1. I am satisfied that, as Mr Flay was a police officer and therefore a law enforcement officer within the meaning of the Victorian Referral Act, he is a person excluded from the Commonwealth unfair dismissal laws and the Commission does not have jurisdiction to deal with his application.

1. Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587((1)(c) of the Act on the basis of no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.

1. An Order[1] to this effect will be issued with this Decision. 

DEPUTY PRESIDENT

[1] PR784691.

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<PR784690>