Ms Shalini Mahendran v Not for Profit Organization Social Housing Community and Justice orThe Crown in the Right of the State of New South Wales
[2020] FWC 3522
•3 JULY 2020
| [2020] FWC 3522 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Shalini Mahendran
V
Not for Profit Organization Social Housing - Community and Justice
or
The Crown in the Right of the State of New South Wales(U2020/6630)
DEPUTY PRESIDENT CROSS | SYDNEY, 3 JULY 2020 |
Application for relief from unfair dismissal – jurisdictional objection – non-national system employer – application dismissed – observations on misleading nature of NSW Government website.
[1] This Decision concerns an application by Ms Shalini Mahendran (the “Applicant”) under s.394 of the Fair Work Act 2009 (the “Act”), for an unfair dismissal remedy. The application identifies the Respondent as “Not for Profit Organization Social Housing – Community and Justice”.
[2] The Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application, which identified the legal name of the employer as “Department of Communities and Justice (NSW Government Agency)”. It later submitted that the proper name of the Respondent in these proceedings should be “The Crown in the Right of the State of New South Wales”. The Respondent has requested that the name of the Respondent be amended pursuant to section 586 of the Act.
[3] In its Form F3 Response, the Respondent raised the jurisdictional the following objection:
“The Applicant was employed the NSW Public Service under the Government Sector Employment Act 2013 (NSW) and therefore the Fair Work Commission (the “FWC”) does not have the jurisdiction to hear the matter given the employee was employed under the NSW State Industrial Relations system (i.e. NSW Industrial Relation Act), rather than in the Federal Industrial Relations system (i.e. the Fair Work Act).
Please refer to the attached Letter of Offer to the Applicant that confirms the employee was employed in the NSW Industrial Relations system.”
[4] Both the Applicant, and Mr David Yuille, a Senior Employee Relations Officer within the Department of Community and Justice, appeared at a telephone hearing of the matter on 1 July 2020. The Applicant relied on a number of emails already before the Fair Work Commission (the “Commission”). The Department of Community and Justice relied upon a Statement of Mr Yuille dated 11 June 2020, that annexed the Applicant’s letter of appointment and various payslips.
[5] Other than the issue of the correct name of the Respondent, the primary submission of the Respondent was that the proper Respondent is not a national system employer pursuant to the Act, and the Applicant is therefore not a person protected from unfair dismissal as contemplated by the Act. It was submitted that the Commission should dismiss the application.
[6] The Act requires that a jurisdictional objection must be considered before the merits of the application. If the objection is upheld, the Commission must dismiss the application.
[7] The issues then for determination are:
(a) The correct name of the Respondent; and
(b) Whether the Respondent is a national system employer and regulated by the Federal industrial relations jurisdiction.
Correct Name of the Respondent
[8] The Applicant rejected the Respondent’s submission. Essentially, the Applicant insists that she can name the Respondent as she wishes, particularly as it is a not for profit body. By email dated 2 June 2020, the Applicant submitted:
“Re: The dispute of changing name on my application.
I believe the Not for Profit Organisation - Community and Justice is a suitable name for this application based on the following facts.
The reason is it was known as Family and Community Services and later Community and Justice and two years later we don't know what its name going to be? Depends on which organisation it is going to be united with in 2 more years, it can disjoined itself and go back to a totally different name or its previous name.
However, the not for profit organisation is a true identity. As this sector does not make profit in its business. This Not for Profit Organisation is something that can come well under your jurisdiction. Hence, Your -Honour, I have no intension to change this name.”
(Original text retained)
[9] The Respondent submits that pursuant to Section 50 of the Government Sector Employment Act 2013 (NSW), if an industrial matter (as defined) comes before a competent tribunal having jurisdiction to deal with it, the employer is taken to be the Industrial Relations Secretary. However, because the Commission does not, as the Respondent submits, have jurisdiction to deal with this matter as it relates to an employee of the NSW Government, the appropriate Respondent, as the actual employer of the Applicant, is the Crown in the Right of the State of New South Wales, pursuant to section 5 of the Crown Proceedings Act 1988 (NSW).
[10] The Applicant commenced employment within the Department of Family and Community Services (as it then was) on 12 June 2019, on a temporary contract with a term of twelve months. She was dismissed from that employment on 27 April 2020. That employment was pursuant to an offer of employment contained in a letter dated 3 June 2019. That letter of offer specifically outlined that it was for employment pursuant to the Government Sector Employment Act 2013, as a Grade 2/4 Clerk with the job title of client service officer.
[11] As is apparently conceded by the Applicant, the Department formerly known as the Department of Family and Community Services, as part of the NSW Government, had its name changed in late 2019 following a merger of Family and Community Services with the Department of Justice to form the Department of Communities and Justice. That change was enacted by administrative action pursuant to Part 7 of the Constitution Act 1902 (NSW).
[12] I accept the Respondent’s submissions as to their correct name. It is clear from payslips in evidence that at the time of the Applicant’s termination she was employed by the Department of Communities and Justice. I also accept that the actual employer of the Applicant, is the Crown in the Right of the State of New South Wales.
Is the Respondent a National System Employer
[13] In order for a person to come within the Commission’s jurisdiction as set out in Part 3-2 of the Act, the person must be a “national system employee”. Section 13 of the Act provides:
“Meaning of national system employee
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.”
[14] In order to determine whether an employing entity is a “national system employer” Section 14(1), sets out certain entities that are taken to be national system employers. Section 380 of the Act confirms the applicability of those definitions to Part 3-2 of the Act.
[15] The Respondent is not a constitutional corporation as defined in section 12 of the Act. It is not a trading or financial corporation 1. It is not covered by any of the other descriptions in section 14(1).
[16] While Sections 30D and 30N of the Act extend the meaning of national system employer in relation to referring states, the extension of the definition must be supported by the terms of the reference from the referring state (Sections 30H and 30S respectively).
[17] While the Industrial Relations (Commonwealth Powers) Act 2009 (NSW) (“the NSW Referral Act”) did in fact refer the power to make laws with respect to certain matters, section 6 of the NSW Referral Act excluded from that referral matters, inter alia, relating to State public sector employees, of which the Applicant was one (see Section 6(c) of the NSW Referral Act and the definition of “state public sector employee” in section 3).
[18] Matters relating to the employment of State public sector employees, remains within the jurisdiction of the Industrial Relations Commission of New South Wales as regulated by the Industrial Relations Act 1996 (NSW).
[19] The Applicant has steadfastly maintained her assertion that this Commission, and the federal jurisdiction, was the correct jurisdiction for her unfair dismissal application, even after receiving the submissions and materials relied upon by the Respondent. She explained that her assertion was based upon:
(a) Advice she received from someone, whose identity I was unable to discern, that she was covered by the “Star National Award 2010”; and
(b) Advice obtained from the “NSW Industrial Commission website”.
[20] The asserted advice regarding federal award coverage was vague and difficult to understand. It is inconceivable how anyone with any advisory role in the area of award coverage could have given such advice. The advice said to be obtained from the “NSW Industrial Commission website”, however, stands in stark contrast to the vague advice regarding award coverage.
[21] The Applicant’s evidence, which I accept, was that on the day she was dismissed, she accessed what she thought was the Industrial Relations Commission of New South Wales website. The link to that website was the following:
The website was in fact that of the NSW Department of Industrial Relations. Following the drop-down links of “Home/Employees/Employee essentials/How to lodge a complaint”, the Applicant was taken to a webpage that stated the following:
“What NSW Industrial Relations cannot assist with
If your complaint is about pay, conditions or workplace rights under Commonwealth legislation, enterprise agreements or modern awards, you should contact the Fair Work Ombudsman’s Infoline on 13 13 94.
If your complaint is about ending employment including unfair dismissal, unlawful termination or general protections, or about bullying, harassment or discrimination at work, you should contact the Fair Work Commission on 1300 799 675.”
[23] Unsurprisingly, the Applicant believed after reading the above, in particular the second paragraph, that all unfair dismissals were matters for the Fair Work Commission. I consider that the Applicant acted reasonably in forming that belief based upon the contents of the webpage. The failure of the webpage to identify the existence of the unfair dismissal jurisdiction of the Industrial Relations Commission of New South Wales rendered it liable to mislead readers, and it did in fact mislead the Applicant. Being a government website, it was not unreasonable for the Applicant to so steadfastly rely on the contents of that webpage until the hearing of this matter.
[24] Notwithstanding the Applicant’s reasonably based misunderstanding, it cannot create jurisdiction where none exists. The Respondent is not a national system employer, within the meaning of s.14 and s.30 of the Act. Accordingly, the Fair Work Commission does not have jurisdiction to deal with the application for an unfair dismissal remedy in respect of the Respondent.
Conclusion
[25] I order that pursuant to section 586(a) of the Act, the name of the Respondent be changed to The Crown in the Right of the State of New South Wales.
[26] Ms Mahendran’s application for an unfair dismissal remedy must be dismissed for lack of jurisdiction and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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1 A.B. (AB2014/1353) [2014] FWC 6723
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