Tomoko Horrell v HealthShare NSW

[2022] FWC 178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tomoko Horrell
v

HealthShare NSW

(U2022/325)

COMMISSIONER BISSETT

MELBOURNE, 28 JANUARY 2022

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

On 5 January 2022, Mrs Tomoko Horrell (Applicant) 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 7 January 2022, the Commission contacted the Applicant via the Translating and Interpreting Service (TIS) on her nominated telephone number to discuss her application. The Applicant confirmed that she was an employee of HealthShare NSW (Respondent). The Commission advised that employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy. A general overview of National System coverage in NSW was provided, including that the NSW state government and departments are not generally included in the national system and applications for such employers need to be made to the State Industrial Relations Commission. The Applicant was advised that an email would follow that afternoon with this information and details to access legal advice and the deadline to advise if she wished to withdraw or proceed with her application.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that based on the information contained in the application the Respondent 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 the Applicant 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. The Applicant failed to respond.

On 19 January 2022, the Commission made a final attempt to contact the Applicant on her nominated telephone number. The Applicant did not answer attempts made to call her via the TIS. A direct attempt was made, and a voicemail message was left requesting that the Applicant contact the Commission to advise on her intentions in relation to the matter, and that if she did not reply within 2 days the matter may be dismissed.

Following this voicemail an email was also sent to the Applicant’s nominated email address, reminding her of the deadline to provide a response in relation to this matter and that if she did not reply the matter may be dismissed.

To date, the Applicant has not contacted the Commission or provided any further information.

On investigation the Commission found that a Fair Work (State Declaration) Endorsement, made on 29 January 2016, declared that HealthShare NSW was not a national system employer.

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”. The Applicant and Respondent do not respectively fall within the scope of these definitions.

In considering the provisions of the FW Act in addition to the State Declaration, I am satisfied that the Commission has no jurisdiction to determine the Applicant’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. As such, the application is dismissed under s.587(1)(a) of the FW Act. An Order[1] giving effect to this decision will be issued shortly.

COMMISSIONER

[1] PR737811

Printed by authority of the Commonwealth Government Printer

In the matter of Tomoko Horrell versus HealthShare NSW, the Fair Work Commission was tasked with determining whether the Commission had jurisdiction to consider a claim for unfair dismissal brought by Mrs Horrell against HealthShare NSW. The Applicant, Mrs Tomoko Horrell, lodged an application for unfair dismissal against her employer, HealthShare NSW, under section 394 of the Fair Work Act 2009 (FW Act). The Commission contacted the Applicant to inform her that she may not be eligible for relief because HealthShare NSW might not be a national system employer, a requirement for accessing the Federal system. Despite multiple attempts to contact the Applicant to confirm her intentions regarding the application, Mrs Horrell did not respond. The Commission subsequently found that HealthShare NSW was not a national system employer as declared by a Fair Work (State Declaration) Endorsement made on 29 January 2016.

The legal issues before the Commission were whether it had jurisdiction to hear the application for unfair dismissal and, if so, whether the application had merit. The central question was whether HealthShare NSW qualified as a national system employer under the FW Act, a determination that would affect the applicability of the federal unfair dismissal provisions. Given the State Declaration, it was clear that HealthShare NSW was not a national system employer, and therefore, the Commission lacked jurisdiction to hear the matter. Commissioner Bissett concluded that the application did not comply with the FW Act because it involved an employee of a non-national system employer. Consequently, the application was dismissed under section 587(1)(a) of the FW Act for not being made in accordance with the Act.

The Commission found that it did not have jurisdiction to hear Mrs Horrell’s application for unfair dismissal because HealthShare NSW was not a national system employer. The application was dismissed as it did not comply with the requirements of the FW Act. An order reflecting this decision will be issued shortly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established