Sarah Williscroft v Mackillop Family Services

[2020] FWC 846

[2020] FWC 846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Sarah Williscroft
v
Mackillop Family Services
(C2019/6967)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 FEBRUARY 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 15 November 2019 Ms Sarah Williscroft applied pursuant to s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure contained in clause 32 of the Mackillop Family Services Enterprise Agreement 2016.

[2] In answer to question 2.1 of the Form F10, which asks the applicant to describe what the dispute is about, Ms Williscroft stated:

“1. MFS Area Manager – Bullied & Harassed me (Philippa Dywer) leading to mental health

2. MFS accepted my resignation from a psychiatric ward

3. MFS did not respond to my E-mail stating I would be making an appeal for constructive dismissal, this was ignored.”

[3] On 18 November 2019 a staff member of the Commission telephoned Ms Williscroft. During that telephone conversation Ms Williscroft advised that she had resigned sometime between June and August 2019. In light of this advice, it was suggested to Ms Williscroft that the application that she lodged may not be applicable to her circumstances.

[4] On 30 January 2020 my Associate wrote to Ms Williscroft and indicated that on the face of the application it does not appear that the Commission has jurisdiction to deal with the matter. Ms Williscroft was invited to make submissions in relation to this issue by 5pm, 13 February 2020 or alternatively to discontinue the application. My Associate indicated that if no submission were received the matter would be determined on the basis of the material filed to date.

[5] At the time of this Decision, the Applicant has not responded to the email of 30 January 2020.

[6] I have decided to dismiss Ms Williscroft’s application pursuant to s.587 of the Act.

[7] Section 587 of the Act states:

“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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[8] It does not appear that the Commission has jurisdiction to deal with a dispute under s.739 of the Act.

[9] Section 739 of the Act states relevantly that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

…

[10] Section 738 of the Act states relevantly that:

“738 Application of this Division

This Division applies if:

…

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

…

[11] In her application form Ms Williscroft provides an address in New Zealand as her postal address. In a telephone conversation with a staff member of the Commission on 18 November 2019 Ms Williscroft confirmed she had resigned her employment at some time between June and August 2019.

[12] Based on the above, I am satisfied that at the time the application was made Ms Williscroft’s employment relationship with the Respondent had ended. The relevant reference instrument which might engage s.739 of the Act, the Mackillop Family Services Enterprise Agreement 2016, would not have applied to Ms Williscroft at the time the application was made.

[13] In the circumstances, I find that the Commission has no jurisdiction to deal with the matter as an application to deal with a dispute in accordance with a dispute settlement procedure.

[14] In deciding to dismiss Ms Williscroft’s application I have had regard to the observation in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others that the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution. 1 In circumstances where Ms Williscroft has been notified of a preliminary view that the Commission lacks jurisdiction to deal with the matter and has been invited to make submissions addressing this issue, but has chosen not to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

Order

The application in C2019/6967 is dismissed.

DEPUTY PRESIDENT

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 1 (1964) 112 CLR 125 at 128-9