The Full Bench has upheld the decision of the Commission in an unfair dismissal application, finding that the Commission did not have jurisdiction to hear the unfair dismissal claim of a national system employee who was not eligible to bring a claim in the Fair Work Commission.

Background

The appellant worked for the respondent for around six weeks as a full‑time Guest Service Agent. The appellant resigned from her employment and commenced an unfair dismissal application in the Commission, alleging that her resignation was induced by bullying by colleagues. 

The parties agreed that the respondent was a national system employer. The appellant, however, was unable to pursue an unfair dismissal claim in the Fair Work Commission as she had not served the six month minimum employment period stipulated in the Fair Work Act 2009 (FW Act), and was not protected from unfair dismissal under the provisions of the FW Act. 

As there is no minimum employment period contemplated to make an unfair dismissal claim in the Commission, the appellant pursued the claim in this jurisdiction. The respondent objected to the application on the grounds of jurisdiction. The Commission upheld the respondent’s objection and dismissed the application. The appellant lodged an appeal to the Full Bench. 

Contentions 

The appellant submitted that the learned Commissioner, by posing the questions she did, took into consideration irrelevant considerations and failed to consider relevant considerations in determining the question of jurisdiction. 

The appellant further contented that that the learned Commissioner erred in law in her application of the test of inconsistency for the purpose of s 109 of the Commonwealth Constitution. The appellant contented that as the FW Act does not provide employees who have not served the minimum employment period with a remedy for unfair dismissal, but the Industrial Relations Act 1979 (IR Act) does, that this means that the two statutes are not inconsistent. The appellant submitted that, if the statutes are not inconsistent, then the IR Act operates and applies, and the Commission has jurisdiction to determine the matter. 

Findings 

The Full Bench noted that inconsistency is not found where there are differences in the operation of the specific provisions, but rather is a result of the express exclusion contained in the FW Act of the operation of the IR Act, to the extent that it applies to national system employees and national system employers. 

The Full Bench upheld the decision at first instance, finding that within the terms of s 26 and subject to the exceptions in s 27 of the FW Act, the FW Act ousts the Commission’s jurisdiction in relation to national system employers and national system employees. 

The appeal was dismissed. 

The decision can be read here.