Robert Bell v South Western Sydney Local Health District

[2022] FWC 1241

[2022] FWC 1241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Bell
v

South Western Sydney Local Health District

(U2022/4862)

COMMISSIONER O’NEILL MELBOURNE, 20 MAY 2022

Application for relief from unfair dismissal- national system employer – dismissal under s.587 at the Commission’s initiative.

1. On 28 April 2022, Mr. Robert Bell 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).

1. On 2 May 2022, the Commission contacted Mr Bell via his nominated telephone number to discuss his application. The Commission advised him that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy. Mr Bell advised that he had received legal advice that it was possible to lodge an application with the Commission. An attempt was made to provide contact numbers to obtain alternative legal advice along with the phone number for the New South Wales Industrial Relations Commission, but the applicant declined this information. Mr Bell indicated that he wanted to proceed with this application.

1. Later that day, the Commission emailed correspondence to Mr Bell’s nominated email address advising that based on the information contained in the application the South Western Sydney Local Health District may not be a national system employer and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with his application. The correspondence also required Mr Bell 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. As the required information was not received, on 16 May 2022, the Commission contacted Mr Bell on his nominated telephone number. Mr Bell advised that the matter was to proceed.

1. The Commission investigated the matter further and found that a Fair Work (State Declaration) Endorsement declared that South Western Sydney Local Health District was not a national system employer.

1. 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, s.380 of the FW Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Mr Bell and South Western Sydney Local Health District do not respectively fall within the scope of this definition.

1. In considering the provisions of the FW Act, in addition to the State Declaration, I am satisfied that the Commission has no jurisdiction to determine Mr Bell’s application for unfair dismissal as his employment was not with a national system employer.

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 was not made in accordance with the FW Act.

1. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An order giving effect to this decision will be issued shortly.

COMMISSIONER

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