Travis Musicka v Ambulance Service of NSW
[2022] FWC 750
| [2022] FWC 750 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Travis Musicka
v
Ambulance Service Of NSW
(U2022/2533)
| COMMISSIONER BISSETT | MELBOURNE, 6 April 2022 |
Application for relief from unfair dismissal – national system employer – dismissal under s.587 at the Commission’s initiative.
On 28 February 2022, Mr Travis Musicka (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 1 March 2022, the Commission contacted the Applicant and advised that it appeared he was not eligible to make an unfair dismissal application. The Commission asked the Applicant to seek legal advice and suggested he may wish to consider making an application in the New South Wales Industrial Relations Commission. The Applicant asked that his file be kept open until he receives legal advice.
Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that based on the information contained in the application, Ambulance Service 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 the Applicant 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 no advice had been received, on 17 March 2022 the Commission made a further attempt to contact the Applicant on his nominated telephone number but was unsuccessful. A voicemail message was left for the Applicant to contact the Commission in regard to his application. The Applicant did not return the Commission’s call.
To date, the Applicant 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”. The Applicant and Respondent 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 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 prospects of success.
Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act. For this reason, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] giving effect to this decision will be issued shortly
COMMISSIONER
[1] PR740018
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<PR740016>
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