Miss Ngarie Hogan v Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital
[2018] FWC 4987
•27 August 2018
| [2018] FWC 4987 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Miss Ngarie Hogan
v
Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital
(U2018/7401)
| Deputy President Anderson | Adelaide, 27 August 2018 |
Application for an unfair dismissal remedy
On 18 July 2018, Miss Ngarie Hogan made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).
On 19 July 2018, the Fair Work Commission (the Commission) contacted the representative of Miss Hogan, Mr Glen Pearce from Websters Lawyers regarding her employment and enquired whether Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital was a national system employer. Mr Pearce was advised that employees who were not employed by a national system employer were ineligible to make an application for an unfair dismissal remedy. Written correspondence confirming this advice was sent to Mr Pearce. He was directed to advise the Commission within 14 days whether he wished to proceed with this application.
On 30 July 2018, the Commission sent an email to Mr Pearce requesting he contact the Commission and advise if he wishes to proceed or discontinue the application.
On 3 August 2018, the Commission sent further correspondence to Mr Pearce advising that based on the information provided, the application did not appear to be validly made and in those circumstances the Commission may not have jurisdiction to deal with this application.
On 9 August 2018, the Commission attempted to contact Mr Pearce by telephone but was unsuccessful. The Commission sent an email to Mr Pearce requesting he contact the Commission and advise if he wishes to proceed or discontinue the application.
On 13 August 2018, the Commission contacted Mr Pearce by telephone. Mr Pearce was awaiting instructions from Miss Hogan if she wished to proceed or discontinue the application.
On 15 August 2018, the Commission sent an email to Mr Pearce requesting he contact the Commission and advise if he wishes to proceed or discontinue the application.
Mr Pearce did not contact the Commission or provide any further information.
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, section 380 of the FW Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. On the material before me, Miss Hogan and Northern Adelaide Local Health Network (SA Health) T/A Lyell McEwin Hospital do not respectively fall within the scope of this definition.
Section 587(1) of the FW Act provides as follows:
“(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.”
In these circumstances, I have determined that the application was not made in accordance with the FW Act.
Consequently, the application is dismissed under section 587(1)(c) of the FW Act.
DEPUTY PRESIDENT
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