Employer responses to an unfair dismissal claim on jurisdictional grounds

Employer responses to an unfair dismissal claim on jurisdictional grounds

I recently attended a conciliation conference conducted by the Fair Work Commission (FWC) on behalf of a small business employer.

An employee had resigned but had brought a claim for constructive dismissal on the basis that he was being badly treated by the employer, was not able to perform his duties and so had no choice but to resign.

The employer disputed these allegations.

The employer’s response was based entirely on jurisdictional grounds, stating simply that the employee had voluntarily resigned, and that the employer was a small business and the employee had not been employed for at least one year, and therefore the FWC did not have jurisdiction to deal with the employee’s application.

The FWC can only deal with unfair dismissal applications that fall within its powers, or jurisdiction.

There are many jurisdictional objections that an employer can make, apart from the two mentioned above.

Another couple are, for example, that the employee was made genuinely redundant, or that the employee lodged their application outside the specified time limit, currently set at 21 days.

For a full list, see the FWC’s very useful Unfair Dismissals Benchbook and other FWC guides.

In this particular matter the more practical approach was to focus on that the employee had only been employed for around six months, rather than dwell on the issue of whether there was constructive dismissal.

The issue then became, was the employer really a small business when it had engaged different contractors from time to time, for particular sporting events that it was managing, and whether these contractors in aggregate exceeded 15.

Being a conciliation conference this issue was not decided, though it was apparent that the test would be whether these contractors were casual employees who were regularly and systematically employed.

The employer’s contention of course was they were not.

These issues about jurisdiction are something for employers to consider in the context of an employment dispute, and for employees to be mindful of when launching an unfair dismissal claim, especially when they are incurring legal costs. 

In this case settlement was achieved.

If it had not there may well have been a formal hearing on jurisdiction issues alone (though sometimes these hearings will consider substantive issues as well), with the potential incurring of substantial legal costs.

Please note that this article is not legal advice for any person. If an employer or employee requires further information they should visit the FWC website, with its voluminous material, or obtain legal advice.

Tim Muffet

Solicitor Director

Best Interests Law