Fair work appeals; the proper approach

When determining jurisdictional issues in an unfair dismissal case the Fair Work Commission must deal with them in a sequential manner determined “in their proper order.” (sic)

“Conclusion and Disposition

[49] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal, and permission to appeal is refused.

[50] In the recent decision in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited 27(Herc), a matter involving five different jurisdictional objections was considered. Those objections were that the Applicant:

•  lodged her unfair dismissal application outside the time required in s.394(2) of the Act;

•  was not an employee;

•  was not dismissed;

•  had not completed the minimum employment period as required by s.382(a) and s.383; and

•  earned more than the high income threshold.

[51] The Member at first instance in Herc dealt only with the high income threshold objection, because after a number of conferences with the parties, ‘it was decided that the jurisdictional objection relating to the high income threshold would be determined first because prima facie, she earned more than the high income threshold’. The Full Bench of the Commission held: 28

“For the reasons that follow, we have decided that in determining the jurisdictional objection relating to whether the Appellant’s earnings exceeded the high income threshold, in advance of other objections, the Deputy President erred by acting on a wrong principle and failing to take other material considerations into account. The material considerations the Deputy President failed to take into account before determining whether the Appellant’s earnings exceeded the high income threshold were: whether the application was made within the time required in s.394(2); whether the Appellant was an employee; if the Appellant was an employee, the entity that employed her; and whether the Appellant was dismissed. While the Commission has broad discretion to decide how a matter will be dealt with, by not determining, in the proper order, other objections upon which the validity an application depends, will result in an error of the kind identified in House v The King.”

[52] Upon the conclusion that Ms Chait’s employer was the Appellant, the issue of whether the Application in the form of the Third Form F2 is out of time comes into focus because it recorded Ms Chait was notified of her dismissal on 11 October 2021, and the dismissal took effect immediately, but the Third Form F2 was filed on 9 November 2021, eight days outside the 21 day period for filing.

[53] Consistently with Herc, the first consideration is whether the application was made within the time required in s.394(2). Pursuant to s.607(3)(c) of the Act, we refer the matter to Deputy President Asbury to deal with it in accordance with this decision.

[54] The Orders of the Commission are:

1. Permission to appeal is refused.

2. The matter is referred to Deputy President Asbury to determine whether the Appellant’s unfair dismissal application was filed within the time required in s.394(2) of the Act.”

 

Church of Ubuntu v Chait (2023) FWCFB 20 delivered 30 January 2023 per Catanzariti VP, Cross DP and Ryan C