Fair Work Commission

Overview

The Fair Work Commission can only deal with unfair dismissal cases that fall within its powers, also known as its 'jurisdiction'.

An employer can lodge a 'jurisdictional objection' if they believe their dismissed employee does not fall within the Commission’s jurisdiction. This means the employer is saying the Commission does not have the power to deal with the claim. If the objection is upheld the unfair dismissal claim will be dismissed.

This video explains:

• the Commission’s jurisdiction
• how employers lodge a jurisdictional objection
• how employees respond to a jurisdictional objection, and
• how jurisdictional hearings operate.

The Commission's jurisdiction

For the Commission to handle an unfair dismissal claim, an employee must:

• lodge their application within 21 days of their dismissal taking effect, unless the employee has applied for an extension of time and it has been determined that there were exceptional circumstances
• be covered by the national workplace relations system
• be an employee who has been dismissed, and
• meet eligibility criteria, including the minimum employment period.

Each of these criteria is explained in detail on these pages:

1. For employees – Can I make an unfair dismissal claim?
2. For employers – Can my employee make an unfair dismissal claim?

How employers lodge a jurisdictional objection

Employers can raise a jurisdictional objection in two ways:

1. in their response form (Form F3), which is lodged after receiving the employee’s application, and
2. in a separate jurisdictional objection form (Form F4).

The employer must explain their arguments why they believe the matter falls outside the Commission’s jurisdiction. An employer may request that the jurisdictional objection be dealt with prior to any conciliation, conference or hearing taking place.

How employees respond to a jurisdictional objection

The employee will receive a copy of the employer’s objection and arguments. The employee then submits written arguments to explain why they think the matter falls within the Commission’s jurisdiction.

How jurisdictional hearings operate

The Commission sends both parties a notice explaining where and when the hearing will be held. This is called the Notice of Listing. It also tells you when you must file your written arguments and supporting evidence like payslips and termination letters – these are called 'directions'.

At the hearing the parties present their arguments and may be asked questions about their evidence. They may need to have witnesses on hand to give sworn evidence and be cross-examined. If witnesses are not present their evidence may be disallowed or given less weight.

The arguments at a jurisdictional hearing are not about the facts of the case – they focus solely on the jurisdictional matters. The facts about whether a dismissal was fair or unfair are not relevant until after the jurisdictional issues are decided.

If the jurisdictional objection is upheld, the Commission is saying it does not have the power to deal with the unfair dismissal claim. So the claim is dismissed and the matter is over.

But if the jurisdictional objection is dismissed, the Commission is saying it does have the power to deal with the unfair dismissal claim. So the matter proceeds to examine the facts of the unfair dismissal claim. In some types of cases the jurisdictional matter and the facts of the case will be dealt with together in a single hearing. But in most cases the jurisdictional objection is decided first, then the unfair dismissal case is dealt with at a later time.

The judgment on the jurisdictional objection could come on the same day as the hearing. If it does the unfair dismissal matter may proceed immediately, although it could also be delayed to another date. However, it is not uncommon for the judgment on the jurisdictional matter to be 'reserved' – that means it will be given at a later time.

In some instances, the jurisdictional objection and merits of the unfair dismissal claim will both be heard in the same hearing or conference. If you are unsure please contact the Commission for further advice.