Shelly Senior v Peel Orthodontics
[2022] FWC 30
•11 JANUARY 2022
| [2022] FWC 30 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shelly Senior
v
Peel Orthodontics
(U2021/11591)
| COMMISSIONER BISSETT | MELBOURNE, 11 JANUARY 2022 |
Application for relief from unfair dismissal – national system employer – dismissal under s.587 at the Commission’s initiative.
On 13 December 2021, Ms Shelly Senior (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).
From the information provided in the Form F2 – unfair dismissal application it appeared that Peel Orthodontics may not be a national system employer. The application fee has also not been paid nor a fee waiver form completed.
On 15 December 2021 the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission to discuss her application.
Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that, based on the information contained in the application, Peel Orthodontics 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 the application. The correspondence also required the Applicant to advise the Commission within 14 days whether she wished to proceed with her application and warned that the application may be dismissed if no response was received.
As the required information was not received, on 4 January 2022 the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application. The Applicant did not answer the call. A voicemail message was left requesting that she contact the Commission as her application was at risk of being dismissed.
To date, the Applicant has not contacted the Commission or provided any further information.
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”. The Applicant and Respondent do not respectively fall within the scope of this definition.
In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine the Applicant’s application for unfair dismissal as her employment was not with a national system employer.
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 prospects of success.
Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An order[1] giving effect to this decision will be issued shortly.
COMMISSIONER
[1] PR737372
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