Mr Nabor Fuentes v Department of Foreign Affairs and Trade

[2018] FWC 1727

[2018] FWC 1727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Nabor Fuentes
v
Department of Foreign Affairs and Trade
(U2017/13595)

DEPUTY PRESIDENT COLMAN MELBOURNE, 26 MARCH 2018

Application for an unfair dismissal remedy – jurisdictional objection – applicant engaged outside Australia – applicant not an Australian-based employee – application dismissed

[1] This decision concerns an application by Mr Nabor Fuentes for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act).

[2] Mr Fuentes was employed by the Australian High Commission in Ottawa, Canada, as a contract centre operator from 5 August 2008 until his dismissal on 4 December 2017. He claims that his dismissal was unfair and seeks an order for compensation.

[3] The Department of Foreign Affairs and Trade (Department) filed an employer response, in which it objected to the application on jurisdictional grounds. It contended that Mr Fuentes’ employment with the High Commission in Ottawa was not subject to the Act, because he was not an ‘Australian-based employee’ for the purposes of s.35 of the Act, and the extraterritorial extension of the unfair dismissal provisions effected through Regulation 1.15F did not apply.

[4] The jurisdictional objection was listed for telephone hearing before me on 16 March 2018. Mr Fuentes appeared for himself. Mr O’Brien appeared for the Department. The parties presented brief oral argument addressing the material they had filed pursuant to the Commission’s directions.

Application of the Act

[5] Section 34 of the Act allows for regulations to be made that extend the application of the Act beyond Australia. Section 34(3) states that, if the regulations prescribe extension of the Act beyond the outer limits of the exclusive economic zone and the continental shelf, the Act or specified provisions of the Act extend accordingly to any ‘Australian employer’ and ‘Australian-based employee’.

[6] ‘Australian employer’ is defined in s.35, and relevantly includes the Commonwealth. The Department acknowledges that Mr Fuentes was employed by the Commonwealth.

[7] The expression ‘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

(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.

[8] Regulations have been made pursuant to s.34(3) extending the application of various parts of the Act. In relation to the application of the unfair dismissal provisions in Part 3-2 of the Act, Regulation 1.15F(5) provides as follows:

‘For subsection 34(3) of the Act, Part 3-2 of the Act, and the rest of the Act so far as it relates to that Part, are extended to an Australian-based employee in relation to the employee’s Australian employer in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf.’

[9] When these provisions are applied to the circumstances of Mr Fuentes’ application, it is clear in my view that the unfair dismissal provisions did not apply to his employment with the Australian High Commission in Ottawa.

[10] Part 3-2 applies outside Australia to an ‘Australian-based employee’. Mr Fuentes was not such an employee.

[11] For the purposes of s.35(2)(b), it does not matter whether a person is located in Australia or elsewhere; an employee who is employed by an Australian employer is an ‘Australian-based employee’. Mr Fuentes falls within s.35(2)(b). However, he is then caught by the exception in s.35(3): he was an employee ‘engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories’.

[12] In this regard, it was common ground that Mr Fuentes was engaged in Canada to perform the duties associated with his role at the Australian High Commission in Ottawa. I note that Mr Fuentes’ employment agreement was signed in Ottawa. Subsequent renewals of his contract occurred in Ottawa. And Mr Fuentes in fact performed his duties in Canada.

[13] Mr Fuentes contended that the Commission ought to accept his claim on the basis that, as a result of the effect of the Canadian State Immunity Act 1985 there are no other remedies available to him in Canada to challenge the termination of his employment with the Australian High Commission. However, jurisdiction is to be determined in accordance with law. The Fair Work Commission has no general discretion to accept unfair dismissal applications. The Commission is a body established by the Act to carry out statutory functions within jurisdictional limitations.

Conclusion

[14] The unfair dismissal provisions in Part 3-2 of the Act did not apply to Mr Fuentes’ employment with the Australian High Commission in Ottawa. He is not able to bring an unfair dismissal application under the Act.

[15] Accordingly, the Department’s jurisdictional objection to Mr Fuentes’ unfair dismissal application is upheld.

[16] Mr Fuentes’ application is dismissed.

DEPUTY PRESIDENT

Appearances:

N. Fuentes for himself

G. O’Brien for the Department of Foreign Affairs and Trade

Hearing details:

2018

Melbourne

Ottawa (by telephone)

16 March

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