Tiri Piripi Grafton v NSW State Emergency Service T/A NSW State Emergency Service

[2017] FWC 4057

[2017] FWC 4057

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiri Piripi Grafton
v
NSW State Emergency Service T/A NSW State Emergency Service
(U2017/6094)

DEPUTY PRESIDENT DEAN SYDNEY, 4 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 7 June 2017 Mr Tiri Piripi Grafton made an application to the Fair Work Commission pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by NSW State Emergency Service(NSW SES).

[2] According to Mr Grafton’s application, he was a Member of the NSW SES until his membership was revoked on 10 November 2016. Mr Grafton claimed that the withdrawal of his membership, whilst an investigation into a complaint made by him was ongoing, was not permitted and constituted an unfair dismissal.

[3] On 4 July 2017, NSW SES filed a Form F4 (Objection to unfair dismissal application) and outlined three jurisdictional objections – that the application was out of time; that Mr Grafton was not an employee; and that NSW SES was a NSW State Government agency and not a national system employer.

[4] In relation to its jurisdictional objection that it was not a national system employer, NSW SES’s basis for its objections were as follows:

“Protection from Unfair Dismissal under the Fair Work Act [Part 3-2 – Unfair Dismissal]

Under s380 of the Fair Work Act, a person is protected from unfair dismissal if they are a national system employee, and they were employed by a national system employer. The Respondent asserts that neither is the case. In addition, Mr Grafton was never employed because he was a volunteer.

The Respondent is the NSW State Emergency Service (NSW SES), a NSW State Government agency created by the State Emergency Service Act 1989 and accordingly is not a national system employer (s14 of the Act).

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory;

The Fair Work Commission does not have jurisdiction to deal with claims made in respect to respondents who are not national system employers.

For employment purposes, the NSW State Emergency Service falls under the jurisdiction of the Industrial Relations Commission of New South Wales.

That being the case, Mr Grafton, even if it were determined that he was an employee, could never be a national system employee (s13 of the Act).

The applicant was a volunteer SES Unit member and not an employee. NSW SES volunteers are granted membership, not employment, under S18AA of the State Emergency Service Act 1989. Membership is not employment because there is no industrial award or agreement, no salary or wages are paid and there is no contract of service. The applicant was a volunteer at the Canterbury and Marrickville SES Units which do not comprise any employees. Employees are only engaged at the Region Office, which is located in Bankstown (Sydney Southern Region).

The applicant identifies himself as a volunteer in his own material submitted to the Commission when he initiated this claim. There are several other indicia that the Commission would consider in determining the status of the applicant, which the Respondent will make submissions on when appropriate.”

[5] On the basis of the information contained in his application and the objections raised by NSW SES, correspondence was sent to Mr Grafton on 7 July 2017 requiring a response from him in relation to the jurisdictional objections within 14 days. Mr Grafton was advised that the Commission may consider dismissing the application in the absence of any submissions being received from him.

[6] At 11.37 PM on 20 July 2017, Mr Grafton sent an email to the Commission in which he said: ‘I will be responding to your email next week’. The Commission replied to Mr Grafton’s email on the morning of 21 July 2017 that he should ‘respond no later than close of business today’. No response was received.

[7] On 26 July 2017, Mr Grafton was given one further opportunity to provide a response, and was asked to provide it by 4:00 pm on 27 July 2017. Mr Grafton was advised that his application may be dismissed if no response was received by 4:00 pm on Thursday 27 July 2017. Again no response was received from Mr Grafton by the stipulated date.

[8] On 28 July 2017, I issued an order dismissing Mr Grafton’s application. Below are the reasons for my decision.

[9] The unfair dismissal provisions under the Act are contained in Part 3-2. The meanings of employee and employee for the purposes of Part 3-2 are provided in s.380 of the Act:

“In this part, employee means a national system employee, and employer means a national system employer.”

[10] Section 13 of the Act defines a national system employee:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[11] Section 14 of the Act defines a national system employer and relevantly provides:

“14  Meaning of national system employer

…

Particular employers declared not to be national system employers

(2)  Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

…”

[12] The NSW SES, established in 1955, is a New South Wales State Government Agency and is operated under the State Emergency Service Act 1989. I am therefore satisfied that it is not a national system employer. It follows that Mr Grafton cannot be a national system employee.

[13] Having considered the circumstances of this matter, I am satisfied that the Commission has no jurisdiction to determine Mr Grafton’s application. Mr Grafton is not a national system employee and NSW SES is not a national system employer within the meanings of ss.13 and 14 and for the purposes of Part 3-2 of the Act.

[14] Section 587(1) of the Act provides:

“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 prospects of success.”

[15] For the reasons set out above, I have concluded that Mr Grafton’s application has no reasonable prospects of success and the application is therefore dismissed pursuant to s.587(1)(c) of the Act

[16] An Order dismissing Mr Grafton’s application was issued on 28 July 2017 1.

DEPUTY PRESIDENT

 1   PR594947

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