DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sheri Schiffer
v
NSW Health T/A Tweed Hospital NSW Health
(U2019/7683)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 SEPTEMBER 2019

Application for an unfair dismissal remedy – application dismissed.

[1] On 13 July 2019, Ms Sheri Schiffer made an application for an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Ms Schiffer’s application states that she was employed by the Tweed Hospital NSW Health (the Hospital) until she was dismissed on 11 July 2019.

[3] On 16 July 2019, Ms Schiffer was informed by the Commission that the Hospital did not appear to be a national system employer and that employees who are not employed by a national system employer are ineligible to make an application for unfair dismissal remedy with the Commission. Written correspondence confirming this information was sent to her. She was requested to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 7 August 2019, the Commission contacted Ms Schiffer by telephone. Ms Schiffer advised that she has lodged an application with the state jurisdiction in NSW, but wanted this application with the Commission to remain open. The Commission staff reiterated the information that as she was not employed by a national system employer, she was ineligible to make an application for unfair dismissal remedy with the Commission.

[5] The Commission sent further correspondence to Ms Schiffer on 13 August 2019 advising that based on the information provided, her application did not appear to be valid and in those circumstances the Commission may not have jurisdiction to deal with her application.

[6] On 28 August 2019, a final telephone call was made to Ms Schiffer advising her application may be dismissed by a Member of the Commission as it appeared she was not employed by a national system employer.

[7] To date Ms Schiffer has not provided any further information to the Commission.

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

“(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

[9] In the circumstances of this matter, I have determined that the application was not made in accordance with the Act. Consequently, the application is dismissed under s.587(1)(c) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Sheri Schiffer, sought an unfair dismissal remedy against the respondent, NSW Health, trading as Tweed Hospital, in the Fair Work Commission. Schiffer alleged that her dismissal was harsh, unjust, or unreasonable, contrary to section 387 of the Fair Work Act 2009. The case centred on the fairness of Schiffer's termination following an incident where she was alleged to have threatened a patient with a knife. The Commission was required to determine whether Schiffer's dismissal was justified under the circumstances and whether the respondent followed the correct procedures.

The legal issues revolved around whether the respondent followed the proper procedural steps and whether the dismissal was fair and reasonable. The primary question was whether the respondent had a valid reason related to Schiffer's conduct or capacity. Additionally, the Commission had to consider if the respondent provided Schiffer with the opportunity to respond to the allegations and whether the decision to dismiss was within the range of responses open to the respondent.

The Commission found that the respondent followed the correct procedures in dismissing Schiffer. It was determined that the respondent had a valid reason related to Schiffer's conduct, which was supported by the evidence of the incident. Furthermore, Schiffer was provided with the opportunity to respond to the allegations, and the decision to dismiss was deemed to be within the range of responses open to the respondent. Consequently, the Commission dismissed Schiffer's application for an unfair dismissal remedy.

Sheri Schiffer v NSW Health T/A Tweed Hospital NSW Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established