Steven Congdon v Clayton La Reservee Summary

[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.

Printed by authority of the Commonwealth Government Printer

Steven Congdon applied to the Fair Work Commission for relief from unfair dismissal, alleging that his employment with Clayton La Reservee was terminated without just cause or reason. Clayton La Reservee, however, was not a national system employer, and therefore the application fell outside the scope of the Fair Work Act 2009 (FW Act). The Commission attempted to contact Mr Congdon on several occasions to clarify the issue but received no response. Ultimately, the Commission found that it lacked jurisdiction to hear the application because it was not made in accordance with the FW Act.

The central issue before the court was whether the Commission had jurisdiction to hear Mr Congdon's application for unfair dismissal. The court found that the application did not comply with the FW Act, as Mr Congdon's employment was not with a national system employer, and the Act only applies to national system employees and employers. The court also considered whether the application was frivolous or vexatious or had no reasonable prospect of success, but ultimately found that the application was not made in accordance with the FW Act.

The court concluded that the application was not made in accordance with the FW Act, as it was outside the scope of the Act. The court found that the application was not frivolous or vexatious, and it was not necessary to consider whether it had no reasonable prospect of success. The court dismissed the application under section 587(1)(c) of the FW Act, which allows the Commission to dismiss an application if it has no reasonable prospect of success.

The court issued an order dismissing Mr Congdon's application for relief from unfair dismissal and declaring that the Commission had no jurisdiction to hear the application. The order will be issued with this decision.

Steven Congdon v Clayton La Reservee

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