The Fair Work Commission can only deal with unfair dismissal applications that fall within its powers, also known as its 'jurisdiction'.
If an employer believes that the Commission does not have jurisdiction to deal with the unfair dismissal application, or the person is not eligible to make the application, then the employer can lodge a jurisdictional objection.
A jurisdictional objection can be lodged by an employer if the applicant:
By lodging a jurisdictional objection the employer is saying that the Commission does not have the power to deal with the claim.
Making a jurisdictional objection will NOT stop an unfair dismissal application.
Jurisdictional objections must be determined by the Commission. This is done by a member holding a conference or hearing and making a formal decision. An employer may be required to provide evidence and/or submissions with regard to its objections.
Depending on the nature of the objection raised, the Commission will either:
Where the Commission holds a conference or hearing to determine the jurisdictional objection first, and the objection is dismissed, the Commission will determine the merits of the unfair dismissal application at a separate hearing or conference. If the Commission decides that the employer's jurisdictional objection is valid, the unfair dismissal application will be dismissed and no further action will be taken.
A jurisdictional objection and the merits of an unfair dismissal application may be heard together where the nature of the evidence that would be considered by a Commission with regard to both is likely to be the same. The Commission will determine whether the jurisdictional objection is valid, and if not, proceed to determine whether the dismissal was unfair. If the jurisdictional objection is valid, the employee's unfair dismissal application will be dismissed.