Steven Congdon v Clayton La Reservee
[2022] FWC 1935
•25 JULY 2022
| [2022] FWC 1935 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steven Congdon
v
Clayton La Reservee
(U2022/6563)
| COMMISSIONER BISSETT | MELBOURNE, 25 JULY 2022 |
Application for relief from unfair dismissal – non-national system employer – dismissal under s.587 at the Commission’s initiative.
On 23 June 2022 Mr Steven Congdon 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 24 June 2022 the Commission attempted to contacted Mr Congdon by telephone to discuss his application. The Commission advised Mr Congdon that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy, and it appeared Clayton La Reservee was not a national system employer.
Later that day, the Commission emailed correspondence to Mr Congdon’s nominated email address advising that based on the information contained in the application the Clayton La Reservee 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 Mr Congdon 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.
As the required information was not received, on 6 July 2022 the Commission attempted to contact Mr Congdon on his nominated telephone number. Mr Congdon did not answer the call. A voicemail message was left requesting a call back to the Commission.
To date, Mr Congdon 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”. Mr Congdon and Clayton La Reservee 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 Mr Congdon’s application for unfair dismissal as his 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] PR744076.
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