Navindra Narayan v Department of Communities and Justice (Corrective Service)

[2019] FWC 7375

[2019] FWC 7375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Navindra Narayan
v
Department of Communities and Justice (Corrective Service)
(U2019/9842)

DEPUTY PRESIDENT DEAN SYDNEY, 25 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 3 September 2019, Mr Navindra Narayan made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 3 September 2019, the Fair Work Commission (the Commission) attempted to contact Mr Narayan regarding his employment and to enquire whether Department of Communities and Justice (Corrective Service) was a national system employer. Mr Narayan was left a voice message advising that employees who were not employed by a national system employer were ineligible to make an application to the Commission for unfair dismissal remedy. Written correspondence confirming this advice was sent to him. Mr Narayan was directed to advise the Commission within 14 days whether he wished to proceed with his application.

[3] On 30 September 2019, the Commission made a further attempt to telephone Mr Narayan. Again, a voice message was recorded requesting he contact the Commission.

[4] The Commission sent further correspondence to Mr Narayan on 30 September 2019, advising that based on the information provided, his application did not appear to be valid and in those circumstances the Commission may not have jurisdiction to deal with his application. In response to this letter, Mr Narayan contacted the Commission and was provided with the contact details for the New South Wales Industrial Relations Commission (NSW IRC). Mr Narayan advised he would contact NSW IRC, and, if appropriate, would withdraw his application lodged with the Commission.

[5] On 8 October 2019, the Commission contacted Mr Narayan and he confirmed that he had lodged an application with the NSW IRC. However, he was unwilling to withdraw his application with the Commission.

[6] Division 1 of Part 3-2 of the Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, s.380 of the Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Mr Narayan and Department of Communities and Justice (Corrective Service) do not respectively fall within the scope of this definition.

[7] In considering the provisions of the Act, I am satisfied that the Commission has no jurisdiction to determine Mr Narayan’s application for unfair dismissal as his employment was not with a national system employer.

[8] Section 587(1) of the Act provides:

(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.

[9] In the circumstances of this matter, I have determined that the application has no reasonable prospects of success and the application is therefore dismissed pursuant to s.587(1)(c) of the Act.

DEPUTY PRESIDENT

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