Terri Rhodes v Shire of Chittering
[2023] FWC 1757
•20 JULY 2023
| [2023] FWC 1757 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Terri Rhodes
v
Shire of Chittering
(U2023/5842)
| COMMISSIONER BISSETT | MELBOURNE, 20 JULY 2023 |
Application for an unfair dismissal remedy
On 30 June 2023 Ms Terri Rhodes 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 3 July 2023, the Commission emailed correspondence to Ms Rhodes’ nominated email address advising that, based on the information contained in the application, the Shire of Chittering may not be a national system employer and to urgently seek independent advice on this issue, as the Commission may not have jurisdiction to deal with her application. The correspondence also required Ms Rhodes to advise the Commission within 14 days whether she wished to proceed with her application. The correspondence warned that the application may be dismissed if no response was received.
Later that day, the Commission attempted to contact Ms Rhodes via her nominated telephone number to discuss the NSE issue. Ms Rhodes did not answer the call. A voicemail message was left requesting she contact the Commission as she may not meet the NSE as the Shire of Chittering is a local government entity which usually comes within the jurisdiction of the Western Australian Industrial Relations Commission. An SMS notification was also sent to Ms Rhodes’ nominated telephone number requesting that she contact the Commission as there is a problem with her Fair Work Commission case.
On 10 July 2023, Ms Rhodes sent an email in reply to the correspondence sent to her on 3 July 2023 requesting the Commission go ahead with the application if possible.
On 12 July 2023, my chambers sent an email to Ms Rhodes advising of the following:
The Commissioner is of the preliminary view that your matter cannot be deal with under the FW Act. To be eligible to make an unfair dismissal application to the Commission you must have been employed by a national system employer. A national system employer is an employer covered by the national workplace relations laws.
In Western Australia, by virtue of a State Declarations Endorsement made by Tony Burke, Minister for Employment and Workplace Relations, the Shire of Chittering (listed in Schedule 1 to the Endorsement) is not taken to be a national system employer for the purposes of the Fair Work Act 2009 (FW Act).
Accordingly, the Commission cannot hear your application. Your unfair dismissal may, however, be able to be heard by the Western Australian Industrial Relations Commission.
In these circumstances the Commissioner is considering dismissing your application pursuant to s.587 of the Fair Work Act 2009 (FW Act) as your application has not been made in accordance with this Act.
In this email, my chambers advised Ms Rhodes that she may file with the Commission any submissions as to why I should not dismiss the application by 17 July 2023. This email also warned that, should Ms Rhodes fail to make any submissions, a decision may be made without further correspondence with her.
To date, Ms Rhodes 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 Rhodes and Shire of Chittering 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 Rhodes’ 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 these circumstances, I have determined that the application was not made in accordance with the FW Act. The application is therefore dismissed under s.587(1)(a) of the FW Act.
COMMISSIONER
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