FWC explores jurisdiction limits in post-employment dispute claims
The Fair Work Commission (FWC) recently dealt with a jurisdictional dispute about whether a worker could access dispute resolution procedures regarding long service leave entitlements after her employment ended.
The worker approached the university's human resources team multiple times before her resignation to inquire about long service leave entitlements. However, the university's position wasn't communicated until after her employment had concluded.
At the heart of the dispute was whether the worker could use the enterprise agreement's dispute resolution procedure after leaving employment, and whether her circumstances qualified for pro rata long service leave payment under the agreement's provisions.
The worker was employed at the University of Sydney through fixed-term contracts from March 2015 to March 2024, serving in research roles. Her final contract as a clinical trials associate was due to end in May 2024.
The situation changed when her research team leader announced their departure to Macquarie University. The worker lodged a dispute with the Fair Work Commission on 18 October 2024 under section 739 of the Fair Work Act 2009 and the university's enterprise agreement dispute resolution procedure.
The university raised a jurisdictional objection, arguing that since the worker was no longer employed and hadn't raised the dispute during her employment, she couldn't use the agreement's dispute resolution procedure.
The dispute focused on clause 279 of the enterprise agreement, which provided that employees with 5-10 years of service could receive pro rata long service leave if they resigned due to "illness, incapacity or domestic necessity."
According to the decision, the worker contacted the university's human resources team on 29 February 2024 and again on 18 March 2024 about her entitlements. The university didn't confirm its position until an email dated 18 April 2024, after her employment had ended.
The Commission noted: "The way that [the employer] communicated with [the worker] about their long service leave entitlements deprived them of any opportunity to utilise the dispute settling procedures in clause 555 of the Agreement before their employment ended."
The Commission found it lacked jurisdiction to resolve the dispute, as the worker hadn't formally invoked the dispute settlement procedure while employed.
The Commissioner stated: "I am very uncomfortable about my conclusion in this case. I consider it results in style prevailing over substance."
The decision noted that if the worker wished to pursue her argument about long service leave entitlements, she would need to consider an application in a court such as the NSW Industrial Court small claims division.
The Commissioner recommended the university pay the worker's pro rata long service leave entitlements, explaining: "I consider the reason provided by [the worker] falls within the term 'domestic necessity' because she needed to resign from employment with [the employer] and to commence employment with Macquarie University to ensure she had a job after her fixed term contract expired."
However, the decision explicitly stated that this recommendation was not binding on the university.
