Silence please – all stand.
The Fair Work Commission is now in session – please be seated.
The Fair Work Commission handles cases about people who think they’ve been unfairly dismissed
from their job.
But it can only deal with cases that fall within its powers.
Sometimes a special process is needed to determine if the unfair dismissal claim can proceed.
It’s called a “Jurisdiction hearing”, and this video will tell you all about it.
We’ll explain the Commission’s jurisdiction on unfair dismissal claims.
We’ll tell you how employers lodge jurisdiction objections and how employees respond to those
objections.
And we’ll explain what both sides can expect to happen in a Jurisdiction hearing.
The Fair Work Commission follows laws about which unfair dismissal claims it is allowed
to determine.
This is called ‘jurisdiction’.
To bring a case before the Commission employees must fall within those jurisdiction rules.
First, the employee must be covered by national unfair dismissal laws.
Second, they must meet definitions to be an employee who has been dismissed.
And third, they have to be eligible.
Later, we’ll go into those rules in more detail.
Also, employees can’t make multiple applications using different sections of the Fair work
Act.
Employees lodge an unfair dismissal claim using an application form.
It has details about the employee, their employer and their employment history.
In it they set out the reasons why their dismissal was unfair.
The Commission sends that application form on to the employer who then has 7 days to
lodge a response form.
Part of that response may be an objection on jurisdictional grounds.
But they can also lodge a special objection form.
Objecting means the employer is saying that the Fair Work Commission does not have the
power to deal with the employee’s application.
We will look at the grounds for objections in a few moments.
The first step in handling claims is conciliation, where both sides try to resolve the matter
together.
This usually still proceeds even when an objection is lodged as it can clear the matter up without
going to a conference or hearing.
However, an employer may ask to have the objection heard prior to the conciliation.
If the jurisdictional objection is heard separately the Commission sends both parties a notice
explaining where and when that conference or hearing will be held.
It also tells you when you must file your written arguments and supporting evidence,
like termination letters and payslips.
The employer lodges written arguments to support their objection and sends these to the employee
so they can respond.
At the conference or hearing the parties present their arguments and may be asked some questions.
They may also need to have their witnesses available to support their case.
These arguments are not about why the dismissal was, or wasn’t, unfair – they focus only
on the jurisdictional objection.
So – what happens next?
If a jurisdictional objection is upheld the Commission is agreeing that it can’t hear
the case.
So the employee’s unfair dismissal claim is dismissed.
But if the objection is dismissed the Commission has the power to deal with the unfair dismissal
claim.
The claim then proceeds to a conference or hearing where the member will determine whether
or not the dismissal was fair.
In some types of cases the jurisdictional objection and unfair dismissal claim will
both be dealt with together at a single hearing.
The decision about the jurisdictional objection may be delivered on the day of the conference
or hearing or it may be reserved to be issued at a later date.
Now ... let’s look at the jurisdiction rules we mentioned earlier in more detail.
It will help you understand when employees can apply and when employers might have grounds
for a jurisdictional objection.
First, employees have to be covered by the national unfair dismissal laws.
All Commonwealth government employees are covered.
But for other people coverage varies depending on your location and employer.
Employees in Victoria, the Northern Territory and the ACT are are covered, regardless of
who they work for.
In Queensland, New South Wales and South Australia only employees of private enterprise are covered.
Local and state government employees are not.
In Western Australia employees of constitutional corporations, like companies, are covered.
This may include local government but excludes state government, sole traders, partnerships
or trusts.
While in Tasmania employees of private enterprise and local government are covered.
But state government employees are not.
If you are still not quite sure about these rules check our website for more details.
If an employee is covered they then have to meet the rules about being an employee who’s
been dismissed.
Independent contractors are not eligible to make an unfair dismissal claim.
People who are employed under contract for a specified period of time or task cannot
make a claim simply because that contract has ended.
But they may be able to take action if they are dismissed during the contract term.
Trainees whose employment ends at the end of their training are also not eligible to
make a claim.
Meanwhile, a person has not been dismissed if they voluntarily resigned or received a
genuine redundancy.
Someone who has been demoted but their wages and duties have not been significantly reduced
may not be eligible to make an unfair dismissal claim either.
These people are not within the Commission’s unfair dismissal jurisdiction.
Finally, an employee must be eligible to make an application.
Time is a crucial eligibility factor.
An employee only has 21 days from the date they are dismissed to lodge an unfair dismissal
claim.
Once those 21 days have passed the eligibility window closes, unless the employee applies
for an extension of time and it is determined that there are exceptional circumstances.
To be eligible the employee must also have been working for the employer for at least
six months – or twelve months if the business employs less than 15 people.
Employees are not eligible if they earn more than the high income threshold unless they
are covered by an award or enterprise agreement.
Check our website for the current high income threshold amount.
Employees are also ineligible if their application is against an entity that is not their employer
or they’re a casual employee without regular work ...
And an employees working for a small business that has complied with the Small Business
Fair Dismissal Code may not have been unfairly dismissed.
This can all be a little tricky to understand.
The Fair Work Commission is not allowed to give you legal advice about your particular
situation.
Employees and employers can sometimes benefit from obtaining their own legal advice about
their own circumstances.
In some larger Fair Work offices there may be free advice available from independent
duty lawyers.
The unfair dismissal team can tell you if this is available in your state.
You can also find a lot more information about unfair dismissal and jurisdictional objections
on our website.
Follow the links on the page next to this video.