Overseas dismissal claim requires Commission to clarify worker's standing
The Fair Work Commission (FWC) recently dealt with the unfair dismissal application of an overseas worker who argued he was an “Australian-based employee” since he was employed by an Australian employer.
Justin Biggs alleged that he was unfairly dismissed by the Commonwealth of Australia as represented by the Department of Foreign Affairs and Trade. He had been employed by the Consulate-General in Chicago, USA.
The Commonwealth objected to the worker’s application and said that he was not an “Australian-based employee” under the Fair Work Act, and therefore, it said the FWC did not have jurisdiction to hear the application. However, despite this, the employer still acknowledged that “it is an Australian employer.”
Definition of Australian-based employee
The Commission explained the meaning of the term “Australian-based employee” and looked into how the FW Act defined it, which stated:
“An Australian-based employee is an employee:
a) whose primary place of work is in Australia; or
b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or
c) who is prescribed by the regulations.
However, [paragraph (b)] does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.”
Worker’s voluntary redundancy
According to records, the worker’s letter of offer dated 20 July 2012 provided that his employment location was the Consulate-General in Chicago, and he was employed as a Locally Engaged Staff (LES) member between 28 July 2012 and 9 May 2023.
The letter of offer was “re-issued” to the applicant in July 2015 to update LES-specific terms and condition of employment, which he accepted.
“While he had been employed prior to this date by the employer, the earlier period of employment ended when he sought and was granted a voluntary redundancy,” the Commission noted.
“The [worker had set out] various reasons why the Commission should find he was an Australian-based employee, primarily because of his period of employment prior to July 2012.”
“However, this period of employment had ended by virtue of his acceptance of a voluntary redundancy, and the relevant conditions of employment set out in the letter of offer dated July 2012 were replaced with the [worker’s] agreement in July 2015,” it added.
“Thus, [he] did not perform duties in Australia after his engagement as a LES in 2012,” the Commission said.
Is the worker an ‘Australian-based employee’ or not?
In its decision, the FWC said that “while the [worker] was employed by an Australian employer, he was not an Australian-based employee.”
“His primary place of work was not Australia, and he was engaged outside Australia to perform duties outside of Australia,” the Commission said.
“As a result, the unfair dismissal provisions of the Act did not apply to the [worker’s] employment, and he is not able to bring an unfair dismissal application under the Act,” it added.
Thus, the Commission rejected the worker’s claim and favoured the employer.
