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3. THE FEDERAL SYSTEM (continued) |
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3.8 What are "jurisdictional issues"? |
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Your employer may claim that the AIRC has no power (ie; is not allowed) to consider your claim because the jurisdictional conditions have not been met. If the employer does this, the AIRC will request written submissions or hold a hearing to decide whether your application should be accepted. Examples of the common jurisdictional issues your employer may raise are:
- That you are not eligible to make a claim for unfair dismissal (eg; because you were a trainee or a short term casual See 3.3 Who cannot make a claim for unfair dismissal in the federal system); or
- That your application should not be accepted because it was lodged out of time.
Deciding on jurisdictional issues
Where the employer has raised a preliminary jurisdictional issue, the AIRC must deal with this before taking any further steps - unless the employer agrees to conciliation being held before the jurisdictional issue is decided.
In deciding whether to hold a hearing, the Commission must take into account the cost to the business of the employer in attending a hearing. If the Commission decides not to hold a hearing, it will invite the employee and the employer to provide further information and will take such information into account when making its decision.
If a hearing is held, the parties will be notified in writing of the time, date and location of the hearing. Both the employee and employer will be required to attend.
It is important to get advice from your union or a lawyer before a jurisdictional hearing to ensure you can answer the issues raised by your employer. It would be helpful to have evidence of events and conversations such as emails, time sheets, pay slips, letters and diary entries that may support your case.
If the jurisdictional issue is decided in your favour the matter will proceed to a conciliation conference. If the AIRC decides against you, your file will be closed, subject to any application for costs, and you cannot proceed any further.
NOTE: that if you have lodged an unfair dismissal application that also included an unlawful termination application, the unlawful termination claim will continue if the jurisdictional issue only related to the unfair dismissal application.
Skye was dismissed because she took a day off sick. She rang the employer and told her shop manager she had been to the doctor and had a medical certificate saying she had the flu and would not be able to return to work for 3 days. The employer told her to come into work or she would be sacked. Skye had only worked with the employer for 5 months, so the employer argued the AIRC did not have jurisdiction to hear the unfair dismissal application because Skye had not worked in the shop for more than 6 months (the qualifying period). The employer also showed the Company's payroll only employed 20 employees. The Commission found it did not have jurisdiction to hear the unfair dismissal application. However, a conciliation concerning the alleged unlawful termination whilst Skye was temporarily absent because of illness went ahead. |
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