In Williams v Sydney Gay & Lesbian Business Association  FWC 4399 the applicant commenced proceedings alleging he had been the subject of unfair dismissal when he was ‘relieved of his volunteer duties’ with the Sydney Gay & Lesbian Business Association. The application was dismissed as Mr Williams refused to take part in the proceedings of the Commission. In the course of dismissing the application Deputy President Sams said (at ) ‘it must be observed that the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed’. In support of that proposition the Deputy President referred to the decision in Grafton v NSW State Emergency Service  FWC 4057 and it is that case that I will now discuss.
In Grafton’s case, the applicant made an application for orders relating to alleged ‘unfair dismissal by NSW State Emergency Service (NSW SES).’ The applicant, Mr Grafton, was a volunteer with ‘the Canterbury and Marrickville SES Units’ (). The SES objected to the Fair Work Commission’s jurisdiction on two grounds. One was that the SES was not a ‘national system employer’. The other was that Mr Grafton was not an employee and the unfair dismissal provisions only apply between employer and employee.
With respect to the first ground the Fair Work Commission is established by the Fair Work Act 2009 (Cth). The Commonwealth is a parliament of limited jurisdiction and can only make laws within the areas permitted by s 51 of the Australian Constitution. To bring employers within the jurisdiction of the Fair Work Commission there has to be a link to a Commonwealth power, most usually the power of the Commonwealth to make laws with respect to corporations (s 51(xx)). The Fair Work Act only applies to national system employers. A ‘body established for a public purpose by or under a law of a State or Territory…’ is not a national system employer. At  Deputy President Dean said:
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.
Mr Grafton’s application was dismissed.
The consequence of finding that the NSW SES is not a national system employer is that a staff member of the SES cannot seek a remedy for unfair dismission from the Fair Work Commission. If they were dismissed, and if they did think it was unfair, they would have to look to the NSW Industrial Relations Commission for any remedy.
Interestingly the Deputy President did not address Mr Grafton’s volunteer status. That is the application was not dismissed because he was a volunteer but because the SES was not a national system employer. Whether Mr Grafton could allege unfair dismissal was not tested because even if he could claim unfair dismissal, he could not do it before the Fair Work Commission. It follows that this case does not support Deputy President Sams conclusion that ‘the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed’.
Deputy President Sams also relied on Grinholz v Football Federation Victoria Inc  FWC 7976. That case also involved a volunteer seeking a remedy for unfair dismissal. In that case the objection to the Commission’s jurisdiction was upheld because the applicant ‘was a volunteer and not an employee’ ().
It is no surprise that a volunteer cannot bring an action for unfair dismissal under the Fair Work Act 2009 (Cth). That Act is clearly directed to regulating the employer/employee relationship.
Even so, in both Williams v Sydney Gay & Lesbian Business Association and Grafton v NSW State Emergency Service it was not the applicants volunteer status that determined the outcome. In Williams, having filed the application the applicant failed to take part in the Commission’s proceedings. In Grafton the application was dismissed as the SES was not a national system employer and so the Commission had not jurisdiction to hear the matter. (It should also be noted that Mr Grafton refused to take part in proceedings or answer requests for his argument on the question of jurisdiction). It was in Grinholz where the fact that the applicant was a volunteer determined that there was no jurisdiction.
Accepting however that a volunteer cannot bring an action for unfair dismissal in the Fair Work Commission the decision in Grafton v NSW State Emergency Service is informative as it explains why no-one, volunteer or employee of the NSW SES can bring such an action. The SES is not a national system employer, so anyone’s remedy is to be found outside the Fair Work Act. For employees that would mean the Industrial Relations Commission, for volunteers their only remedy for alleged unfair termination would be in the New South Wales Civil and Administrative Tribunal or the Supreme Court – see Castle v Director General State Emergency Service  NSWCA 231 and the following blog posts:
- ‘Reasonable Grounds’ for disciplinary action in the South Australian Country Fire Service (October 10, 2014); and
- Natural Justice and the SES (September 28, 2015).