Ms Maree Liddell v NSW DET - [2022] FWC 2245

[2022] FWC 2245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Maree Liddell
v

NSW DET

(C2021/7876)

DEPUTY PRESIDENT CROSS

SYDNEY, 14 SEPTEMBER 2022

Application to deal with contraventions involving dismissal

On 18 November 2021, Ms Maree Liddell (the Applicant) lodged a General Protections application involving a dismissal (the Application) pursuant to s.365 of the Fair Work Act (the Act). The Application alleged that the Applicant had been dismissed by “NSW DET”. In the Form F8A Response to general protections application (the Form F8A), the Respondent outlines the legal name of the Respondent as “the Crown in the Right of the State of New South Wales, acting through the Secretary, Department of Education” with the trading name or registered business name of “NSW Department of Education” (the Respondent).

The Applicant commenced employment with the Respondent on 13 July 2021. She was employed as a teacher on a casual basis, one day per week at Bodalla Public School and two days a week at Narooma Public School.

Alleged Contravention

On 22 October 2021, Ms Yvette Cachia, Chief People Officer of the Respondent directed the Applicant to enter her vaccination status in the department’s COVID-19 Vaccination Attestation and Confirmation System (VACS). The Applicant did not do so.

Ms Cachia subsequently advised the Applicant that she was required to comply with that direction before 8 November 2021. Again, the Applicant did not do so. The Applicant was subsequently not offered any further casual work by the Respondent.

Jurisdictional Objections

In the Form F8A, the Respondent outlined the jurisdictional objections to the Application. The Respondent submitted that:

(a)The Crown in right of the State of NSW is not a “constitutionally-covered entity”, a “trade or commerce employer” or a “Territory employer” for the purposes of s.338 of the Act. The Respondent denies that the Fair Work Commission (the Commission) has jurisdiction with respect to the claim (the Non-National System Objection); and

(b)The Respondent noted that the Applicant at Questions 1.2 and 1.3 of the Application states that she is “not dismissed as yet”. The Applicant had been employed on a casual basis for a short period of time, and as such, had no expectation of ongoing employment with the Respondent (the No Dismissal Objection).

In the evidence and submissions of the parties, the focus was on the Non-National System Objection, and consequently that objection is the focus of this decision.

Commission Proceedings

The Applicant did not attend the directions hearing on 27 January 2022. Further directions were issued in the absence of the Applicant requiring the Respondent to advise their position regarding their jurisdictional objection, and whether the Applicant wished to proceed with her Application.

On 4 April 2022, the Applicant advised she wished to proceed with the Application notwithstanding the Non-National System objection. The matter was listed for hearing on 1 July 2022. At that hearing an issue arose regarding a Notice to Produce agitated by the Applicant. The matter was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms Maree Liddell v NSW DET

Details

AGLC: Ms Maree Liddell v NSW DET [2022] FWC 2245
Case: [2022] FWC 2245
Decision Date: 14 SEPTEMBER 2022

CaseChat Overview and Summary

In the Fair Work Commission, Ms Maree Liddell sought to bring an application against the NSW Department of Education (the Respondent) for alleged contraventions involving dismissal. The Respondent objected to the Commission's jurisdiction to hear the matter, on the basis that it was not a "constitutionally-covered entity", a "trade or commerce employer" or a "Territory employer" for the purposes of s.338 of the Fair Work Act 2009. The Respondent also submitted that the Applicant had not been dismissed, as she had been employed on a casual basis, and had no expectation of ongoing employment. The Applicant responded to the objection by submitting that the Respondent was a business operating under an Australian Business Number (ABN), and thus fell within the jurisdiction of the Commission. The Applicant also submitted that the Respondent had failed to provide the contract of employment as ordered by the Commission, and that the pay slips indicated that the Respondent was a business operating under an ABN.

The Commission found that the Respondent was not a national system employer or a constitutional corporation, as it was a body established for a public purpose by or under a law of a State. The Commission noted that s. 6(b) of the Industrial Relations (Commonwealth Powers) Act 2009 (NSW) excluded from reference "matters relating to State public sector employees", and that the Applicant's employment was governed by the Teaching Service Act 1980 (NSW). The Commission also found that the use of an ABN did not bring an entity within the jurisdiction of the Commission, as the A New Tax System (Australian Business Number) Act 1999 applied to Government Entities, including State Government Entities.

The Commission held that it did not have jurisdiction to deal with the Application, being an application by an employee of the NSW Department of Education. The Commission dismissed the Application.

This case highlights the importance of establishing the jurisdiction of the Fair Work Commission before bringing an application. The Commission will not hear matters involving State public sector employees, and the use of an ABN does not necessarily bring an entity within the jurisdiction of the Commission.

Orders