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Fair Work Commission Jurisdictional Objections

The Fair Work Commission can only hear unfair dismissal cases that fall within its jurisdiction to review. An employer can file a jurisdictional objection if it believes that the Commission does not have the power to decide an employee’s case. If the objection is upheld, the Commission will dismiss the employee’s unfair dismissal claim. This article outlines the nature of jurisdictional objections in Fair Work Commission cases.

What are Fair Work Commission Jurisdictional Objections?

There are limits to the Fair Work Commission’s power to hear unfair dismissal cases. Typically, an employer will lodge a jurisdictional objection for one of the following six reasons.

  1. The Claim Is Out Of Date

An employer can raise a jurisdictional objection if an employee files their unfair dismissal claim too late. Under the Fair Work Act 2009, an employee must make an application within twenty-one days of the dismissal date. The employee can apply for an extension if their claim was delayed due to exceptional circumstances. The applicant must present a compelling argument to justify the delay.

In Massey v Centrecare [2022], the Fair Work Commission declined to allow an extension for an unfair dismissal claim. The employee applied for a remedy after Centrecare terminated her employment. However, she made the application more than twenty-one days after her dismissal. The applicant attributed her delay to the December holidays, stress over her unemployment, and distraction over her need to move and sell possessions to cover her expenses. The Commission found that financial stress and disruption to accommodation is not an exceptional circumstance because it was a common consequence of unemployment. The Commission also dismissed the impact of the public holidays over the end of year period. When the Commission attempted to solicit evidence of a medical reason for the delay, the applicant failed to provide any further documentation. The Commission found that the applicant had not provided an acceptable reason to allow for a late application.

  1. The Applicant Was Not A Permanent Employee

The employer can also lodge a jurisdictional objection if the employee was never an employee. The Fair Work Commission cannot hear an unfair dismissal case for a worker who was an independent contractor, volunteer, or unpaid intern. In addition, a casual employee working irregular hours cannot bring a wrongful dismissal case as they have no reasonable expectation of continued employment.

  1. The Employee Resigned

The Fair Work Commission cannot hear a case for wrongful dismissal if the employee voluntarily resigned from their position. However, the Commission can adjudicate a case of constructive dismissal, where the employee had no choice but to resign from a hostile work environment.

  1. The Employee Was Made Redundant

There can be no case for unfair dismissal when an employer makes an employee redundant. The employee may be able to forestall this objection on the basis that it was not a genuine redundancy.

  1. The Worker’s Employment Was Too Short

A worker must be employed for a certain amount of time before they are eligible to make an unfair dismissal claim. An employee must have worked for a medium to large business for at least six months, and a small business for one year before they can bring a claim. Certain absences during employment do not count towards the minimum employment period.

  1. The Employee Earnt Too Much

The Fair Work Commission does not have jurisdiction to hear a claim from an employee who earns more than the high-income threshold. An employer can only raise a jurisdictional objection over income when the employee was not under a Modern Award wage.

Lodging A Jurisdictional Objection

An employer can lodge a jurisdictional objection in a response form (Form F3), after it receives the employee’s application to the Fair Work Commission. Alternatively, the employer can file a separate jurisdictional objection form (Form F4). In these forms, the employer outlines its arguments as to why the matter is outside the Commission’s purview. The employer must serve a copy of their jurisdictional objection on the employee, who can submit their own written arguments in response. At this point, the employer can request that the Commission make a ruling on the jurisdictional objection before scheduling any further conferences or hearings.

Fair Work Commission Jurisdictional Objection Hearing

The Fair Work Commission will send the employer and employee a Notice of Listing, to inform the parties of the time and location of the jurisdictional objection hearing. This document will also contain ‘directions’ on deadlines for the parties to file written arguments and supporting evidence (such as termination letters and payslips). During the hearing, the parties should be prepared to present arguments and answer questions about the evidence. They should also have any witnesses on hand to give supporting evidence and answer cross-examination. The Commission may attribute less weight or altogether disallow evidence if a witness is absent from the hearing.

The purpose of this hearing is only to settle the jurisdictional question. The facts of the unfair dismissal case are irrelevant until after the Commission settle the jurisdictional matter. The Commission will either uphold the jurisdictional objection and dismiss the claim or dismiss the objection and proceed to a hearing on the facts.

You should consult a solicitor to review your employment agreement and ensure that your employer cannot raise a jurisdictional objection to your unfair dismissal claim. Please call 1300 038 223 or contact our Commercial law team without delay for experienced legal advice.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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