Stacy Elliott v Queensland Health

[2022] FWC 1752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stacy Elliott
v

Queensland Health

(U2022/6130)

COMMISSIONER BISSETT

MELBOURNE, 7 JULY 2022

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

On 7 June 2022 Ms Stacy Elliott 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).

On 8 June 2022, the Commission attempted to contact Ms Elliott via her nominated telephone number to discuss her application. Ms Elliott did not answer the call and a voicemail could not be left.

Later that day, the Commission emailed correspondence to Ms Elliott’s nominated email address advising that based on the information contained in the application, Queensland Health 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 her application. The correspondence also required Ms Elliott 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 20 June 2022 the Commission attempted to contact Ms Elliott via telephone but Ms Elliott did not answer the call and a voicemail could not be left.

To date, Ms Elliott 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”. Ms Elliott and Queensland Health 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 Ms Elliott’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 prospect of success.

In this circumstance, I have determined that the application was not made in accordance with the FW Act.

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

COMMISSIONER

[1] PR743491.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Stacy Elliott applied to the Fair Work Commission for relief from unfair dismissal against Queensland Health. The Commission, presided over by Commissioner Bissett, found that it did not have jurisdiction to determine the application, as the employment was not with a national system employer within the meaning of the Fair Work Act 2009. Commissioner Bissett was tasked with determining whether the application was made in accordance with the Fair Work Act, and if the Commission had jurisdiction over the matter. This involved examining whether Queensland Health was a national system employer and whether Ms Elliott was a national system employee as defined in the Act.

The primary legal issue before the Commission was whether it had jurisdiction to determine Ms Elliott's application for unfair dismissal. The Commission noted that if Queensland Health was not a national system employer, the application would not fall within the scope of Division 1 of Part 3-2 of the Fair Work Act, which deals with unfair dismissal of national system employees. Commissioner Bissett concluded that the application did not comply with the requirements of the Fair Work Act and found that the Commission lacked jurisdiction over the matter. The application was subsequently dismissed under section 587(1)(c) of the Fair Work Act.

The Commission found that the application was not made in accordance with the Fair Work Act and did not have a reasonable prospect of success. The Commission did not have jurisdiction to determine the application for unfair dismissal because the employment was not with a national system employer. Commissioner Bissett dismissed the application under section 587(1)(c) of the Fair Work Act, and an order to this effect was issued with the decision.

The final orders of the Commission included dismissing the application for unfair dismissal made by Stacy Elliott against Queensland Health, finding that the Commission did not have jurisdiction to determine the matter. The decision was made pursuant to section 587(1)(c) of the Fair Work Act, and an order was issued accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established