Unfair dismissal claim dismissed for lack of jurisdiction as family trusts found to be national system employer

Details  Created: 06 March 2020

The Commission has determined on the papers that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter.

The application named the respondent as the respondent’s business trading name. The respondent submitted that the applicant’s employer was in fact two trustees and that the family trusts are in partnership as the registered business trading name. The respondent also submitted that the entity consists solely of trading activities.

Commissioner Walkington noted that a trust is not a legal entity and it is the trustee, the person/entity responsible for administering the trust, who enters into the employment contracts. Walkington C considered that if the trustee is a company, it may be a constitutional corporation and a national system employer.

Walkington C concluded, on the undisputed information and documentation provided by the family trusts, that the applicant’s correct employer were the two trustees and ordered the name to be amended accordingly.

Walkington C applied relevant legal principle and found that the family trusts, as employer, were a trading corporation and the applicant was employed by a national system employer.

The applicant was dismissed on the basis that the Commission did not have jurisdiction to deal with the applicant’s claim for unfair dismissal.

The decision can be read here