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:
For the Commission to handle an unfair dismissal claim, an employee must:
Each of these criteria is explained in detail on these pages:
Employers can raise a jurisdictional objection in two ways:
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.
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.
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.