Fair Work Commission

Introduction

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 an objection.

The standard Form F3 for an employer’s response to an unfair dismissal application at paragraph 2.1 asks whether the employer has ‘any jurisdictional or other objections to the application’ [emphasis added], and objections identified under this part of the form have often been referred to as ‘jurisdictional objections’.^[1]

What are jurisdictional or other objections?

An objection can be lodged by an employer if the applicant:

• was not an employee (eg they were an independent contractor or volunteer)
• was not dismissed or resigned voluntarily
• was made genuinely redundant
• earned over the high income threshold and was not covered by a modern award or employed under the terms of an enterprise agreement
• was employed for a specified period, task, seasonal contract or traineeship arrangement, and was dismissed at the end of the period, task, season or arrangement
• was not a national system employee
• was a casual employee and was not regularly and systematically employed and had no reasonable expectation of continuing employment
• made the application against an entity who is not the employer
• made multiple applications regarding the dismissal
• worked for the employer for less than six months, or less than one year if the employer was a small business employer, or
• lodged their application to the Commission outside the specified time limit and there are not exceptional circumstances permitting an extension of time.

By lodging an objection the employer is saying that the Commission does not have the power to deal with the claim.

An objection to an unfair dismissal application can also be raised after lodging the Form F3 employer’s response by completing a Form F4 – Objection to application for unfair dismissal remedy.

How are objections to applications for unfair dismissal managed?

Section 396 of the Fair Work Act 2009 requires that certain matters, including whether the dismissal was a case of genuine redundancy, be determined before considering the merits of the application. The requirement to decide issues in a certain order of priority does not mean they need to be the subject of a separate, preliminary hearing, and not all the ‘initial matters’ identified in s.396 are jurisdictional matters. Determining whether a dismissal is a genuine redundancy (as defined) precedes and may remove the need to determine other questions (or the ‘merits’ of the application).^[3]

• hold a conference or hearing to determine the jurisdictional objection first, and deal with the objection independently of the merits of an application, or
• hold a conference or hearing that deals with both the jurisdictional objection and the merits of the application.

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.

References