The Commission has held that a national system employee who did not meet the minimum period of employment to make a claim under the Fair Work Act 2009 (Cth) (FW Act) cannot seek relief under the Industrial Relations Act 1979 (WA) (IR Act).

Background

The applicant was employed by the respondent from 9 December 2020 until 28 January 2021. The applicant contends that she was forced to resign because of the behaviour of two colleagues.

The applicant was employed for a period less than the minimum six-month period required under the FW Act  to be able to make an application to the Fair Work Commission, and sought relief in the Commission .  

Contentions

The applicant contended that the IR Act applied to her employment because the FW Act precluded her from pursuing her claim in that jurisdiction.  

The respondent argued that the Commission did not have the necessary jurisdiction as it is a national system employer. The respondent submitted an affidavit attaching an Annual Financial Report for the year end 30 September 2020, a summary of the structure of the company and an extract of the company details held by the Australian Securities and Investments Commission.

Findings

The Commission noted that section 26 of the FW Act operates to apply to all national system employees and employers and excludes the provisions of the IR Act.

The Commission determined that, as the respondent was a trading corporation and national system employer, the applicant could not seek relief for an unfair dismissal under the IR Act. The application was dismissed for want of jurisdiction.

The decision can be read here.