Tony Sgroi v The Legislature Parliament of Nsw

[2022] FWC 2070

[2022] FWC 2070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tony Sgroi
v

The Legislature Parliament Of Nsw

(U2022/7100)

COMMISSIONER BISSETT MELBOURNE, 5 AUGUST 2022

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

1. On 13 July 2022, Tony Sgroi 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).

1. On 15 July 2022, the Commission attempted to contact Tony Sgroi via his nominated telephone number to discuss his application. He did not answer the call. A voicemail message was left requesting him to contact the Commission to confirm his employment details.

1. Later that day, the Commission emailed correspondence to Mr Sgroi’s nominated email address advising that based on the information contained in the application the Legislature Parliament of NSW 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 his application. The correspondence also required Mr Sgroi 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.

1. On 15 July 2022, Mr Sgroi telephoned the Commission and was advised that he may not have been employed by a National System Employer and the Commission may not have jurisdiction to deal with his application. During this telephone call it was recommended Mr Sgroi obtain legal advice and contact the Commission within 14 days to either provide further information or discontinue his application.

1. As the required information was not received, on 28 July 2022 the Commission attempted to contact Mr Sgroi on his nominated telephone number. He did not answer the call. A voicemail message was left requesting him to contact the Commission to provide further information or discontinue his application by close of business 29 July 2022.

1. To date, Mr Sgroi has not contacted the Commission or provided any further information.

1. 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 Sgroi and The Legislature Parliament of NSW do not respectively fall within the scope of this definition.

1. In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine Mr Sgroi’s application for unfair dismissal as his employment was not with a national system employer.

1. 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.

1. In this circumstance, I have determined that the application was not made in accordance with the FW Act.

1. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An order giving effect to this decision will be issued shortly.

COMMISSIONER

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