1
Fair Work Act 2009
s.394—Unfair dismissal
Justin Biggs
v
Commonwealth of Australia as represented by Department of Foreign
Affairs and Trade
(U2023/4598)
DEPUTY PRESIDENT DEAN CANBERRA, 21 AUGUST 2023
Application for an unfair dismissal remedy – whether Australian based employee
[1] Mr Justin Biggs (Applicant) has made an application for an unfair dismissal remedy
pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by
Commonwealth of Australia as represented by Department of Foreign Affairs and Trade
(Respondent).
[2] The Applicant had been employed by the Consulate-General in Chicago, USA.
[3] The Respondent objected to the application on the basis that it says the Applicant was
not an ‘Australian-based employee’ for the purposes of s.35(2) of the Act and the Commission
therefore does not have jurisdiction to hear the application.
[4] The Respondent accepts it is an Australian employer pursuant to s.35(2) of the Act.
[5] The jurisdictional objection was heard on 14 August 2023. At the hearing, the Applicant
was represented with permission by Ms L Wood of Snedden Hall & Gallop Lawyers. The
Respondent was represented with permission by Mr J Darams of Counsel and called evidence
from Mr Joel Nelthorpe. The Applicant adduced no evidence and relied solely on submissions.
Is the Applicant an Australian-based employee?
[6] An ‘Australian-based employee’ is defined in sections 35(2) and (3) as follows:
(2) 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
[2023] FWC 2082
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2082
2
(c) who is prescribed by the regulations.
(3) However, paragraph (2)(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.
[7] Based on the unchallenged evidence, it is clear that the Applicant’s letter of offer dated
20 July 2012 provides 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 was accepted by the Applicant.
[8] While he had been employed prior to this date by the Respondent, the earlier period of
employment ended when he sought and was granted a voluntary redundancy.
[9] The submissions filed by the Applicant set out various reasons why the Commission
should find he was an Australian-based employee, primarily because of his period of
employment with the Respondent prior to July 2012. However, I accept 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
Applicant’s agreement in July 2015.
[10] I accept the Respondent’s evidence that the Applicant did not perform duties in Australia
after his engagement as a LES in 2012.
Conclusion
[11] While the Applicant was employed by an Australian employer, he was not an
Australian-based employee because his primary place of work was not Australia, and he was
engaged outside Australia to perform duties outside of Australia.
[12] As a result, the unfair dismissal provisions of the Act did not apply to the Applicant’s
employment, and he is not able to bring an unfair dismissal application under the Act.
[13] Accordingly, the Respondent’s jurisdictional objection to the unfair dismissal
application is upheld and the application is dismissed.
DEPUTY PRESIDENT
OF THE PAIR WORK THE FAIR ORK CO ADOTSALLA MMISSION THE SEALO
[2023] FWC 2082
3
Appearances:
L Wood for the Applicant.
J Darams of Counsel for the Respondent.
Hearing details:
2023.
By telephone:
August 14.
Printed by authority of the Commonwealth Government Printer
PR765368
