A jurisdictional objection to an unfair dismissal application under the Fair Work Act 2009 (Cth), is an objection raised by a respondent (usually an employer) asserting that the Fair Work Commission (FWC) does not have the legal authority (jurisdiction) to hear and determine the application, or that the applicant is not eligible to make the claim.
Common grounds for jurisdictional objections include:
- the application was lodged outside the statutory 21-day time limit without exceptional circumstances justifying an extension;
- the applicant has not completed the minimum employment period;
- the applicant was not dismissed within the meaning of the Act;
- the dismissal was a case of genuine redundancy;
- the applicant is not a national system employee;
- the applicant is a casual employee who was not a regular casual or had no reasonable expectation of ongoing employment;
- the applicant was earning above the high income threshold and is not covered by a modern award or enterprise agreement; or
- the applicant has made multiple applications regarding the same dismissal.
Jurisdictional objections must be considered and determined by the FWC before proceeding to the merits of the unfair dismissal application. If the FWC determines it does not have jurisdiction, the claim will be dismissed. The process for raising a jurisdictional objection involves completing the relevant section of the response form or, if a response has already been filed, lodging a General application form (Form F1) with details of the objection. The applicant is usually given an opportunity to respond in writing, and the FWC may hold a conference or hearing to determine the objection, either separately or together with the merits of the application.
Case law has clarified the sequence and handling of jurisdictional objections, emphasising that issues such as whether an applicant was dismissed or whether the application was lodged within time must be determined before the FWC exercises its substantive powers. If the FWC errs in determining a question on which its authority depends, this may constitute a jurisdictional error subject to judicial review.
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