Case Study – Jurisdictional Objection to an Unfair Dismissal Case
We previously successfully acted for an employer who was served with an unfair dismissal application. The applicant was self-represented.
In our client’s submissions we raised jurisdictional objections on the basis that:
- the applicant had not satisfied the minimum employment period in the context of a small business employer as required under the Fair Work Act 2009 (Cth); and
- our client was a small business who had complied with the Small Business Fair Dismissal Code.
It was submitted in our client’s submissions that by reason of the jurisdictional objections raised, the applicant was not entitled to protection from unfair dismissal under the Fair Work Act 2009 (Cth).
In particular, our client relied on the authority which confirms that the Fair Work Commission will dismiss an unfair dismissal application in circumstances where the applicant has not satisfied the minimum period of employment. Further, our client made submissions confirming that they had complied with Small Business Fair Dismissal Code.
In order to protect our client’s interests further, even if the jurisdictional objections were not accepted (which would be surprising), our client set out their response about the basis for applicant’s unfair dismissal claim.
The applicant was put on notice about the possible cost orders that the Fair Work Commission may make against a party, and our client’s right under the Fair Work Act 2009 (Cth) to make an application for a costs order after the Fair Work Commission determines the matter or the matter is discontinued.
The matter was listed for a voluntary conciliation conference, however prior to that conference the applicant and our client reached a settlement, and the matter was finalised without the parties having to proceed to a conference.
This case study serves as an important example that whether you are an applicant or respondent to an unfair dismissal claim it is important that both parties take it seriously and understand their position prior to commencing or responding to any claims by obtaining independent legal advice.
There are potential cost orders which can flow from a person’s application being non-compliant with the requirements of an unfair dismissal claim or if a party to an unfair dismissal claim caused costs to be incurred for the other party because of an unreasonable act or omission by the former party in connection with the conduct or continuation of the matter.
This case study is not legal advice and should not be construed or relied upon as legal advice. If you are considering filing an unfair dismissal application, or are an applicant or respondent in an unfair dismissal application, we recommend that you obtain independent legal advice. Please feel free to contact our firm on 07 5532 3133 if you are seeking independent legal advice.