Prosenjit Biswas v Victoria Police

[2022] FWC 502

[2022] FWC 502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Prosenjit Biswas
v

Victoria Police

(U2022/1230)

COMMISSIONER BISSETT MELBOURNE, 8 MARCH 2022

Application for an unfair dismissal remedy – national system employer – applicant not eligible for unfair dismissal –dismissal under s.587 at the Commission’s initiative.

1. On 28 January 2022 Prosenjit Biswas (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Prosenjit Biswas alleged they were unfairly dismissed by Victoria Police (the respondent) from their role as a Protective Services Officer on 7 January 2022.

1. On 31 January 2022 the Commission contacted the Applicant by telephone to discuss the application. The Commission advised the Applicant that employees who were not employed by a National System Employer are ineligible to make an application for unfair dismissal. The applicant was informed they may make an application to the Police Appeals Board. The Applicant confirmed they had already done so but wished for their application with the Commission to proceed.

1. While Victoria Police is a National System Employer, Protective Service Officers along with Police Officers and some others are not protected from unfair dismissal.

1. Later that day the Commission emailed correspondence to the applicant’s nominated email address advising that based on the information contained in the application the Applicant may not be covered for unfair dismissal and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with the application. The correspondence also required the Applicant to advise the Commission within 14 days whether he wished to proceed with his application and warned that the application may be dismissed if no response was received.

1. The application was subsequently referred to me for consideration.

1. On 24 February 2022 my chambers emailed the Applicant the following:

I refer to your application for an unfair dismissal remedy made on 28 January 2022. Your application has now been referred to Commissioner Bissett, National Practice Lead for Unfair Dismissals at the Commission.

It appears you may not be covered for unfair dismissal as you were employed as a Protective Services Officer with Victoria Police.

The Commissioner understands that during a phone conversation between yourself and a Commission staff member on 31 January 2022, you were advised of this however indicated you wished to pursue your application. You also advised that you had applied to the Appeals Board. Subsequently, further correspondence was issued to you by email that day requesting you advise the Commission if you wished to pursue you application.

I draw your attention to an excerpt of page 33 of the Unfair dismissal benchbook:

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 Fair Work (Commonwealth Powers) Act 2009 (Vic).

As you were employed as a Protective Services Officer it is the Commissioner’s view that the Commission does not have jurisdiction to hear your application. Section 68B of the Police Regulation Act 1958 (Vic) instructs that a member of the Victorian Police Force who has been dismissed may apply to the Appeals Board for a review of the dismissal order. The Commissioner understands that you have made such an application. You should note as well that it is not possible to make two applications in relation to the same dismissal.

The Commissioner 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. Should you wish to provide any submissions or evidence indicating that you are able to make an unfair dismissal application, noting the provisions of the Fair Work (Commonwealth Powers) Act 2009 (Vic), the Commissioner will consider these prior to making her decision. Any submissions must be provided in writing by 4.00 pm Thursday 3 March 2022. (emphasis in original)

1. There was no response to this correspondence.

1. Section 587(1) of the FW Act provides 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 prospect of success.

1. In this circumstance, I have determined that the application has no reasonable prospects of success.

1. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An order[1] to this effect has been issued with this decision.

COMMISSIONER

[1] PR739093.

Printed by authority of the Commonwealth Government Printer

<PR739092>