Can I be Paid Sick Leave as a Casual Employee?
As the holiday season creeps closer, the opportunities for casual
Whether you can sue in Victoria primarily depends on:
a) whether your claim lies in the Federal Court or in a tribunal, (this will depend on the type of claim and whether a Victorian or Commonwealth law has been breached) or
b) whether the court or tribunal accepts your application to issue proceedings and if so, whether your employer (the defendant) objects or consents to the jurisdiction when served with the legal process or
c) whether there is any real connection to the Victorian jurisdiction if it is a state matter.
If you are claiming under a Commonwealth Act, namely the Fair Work Act 2009 or the Competition and Consumer Act 2010 the court or tribunal will generally accept your application to issue proceedings to sue in Victoria because Fair Work Australia, the Federal Court and most other Federal Tribunals have a presence in Victoria. These institutions also usually allow video link up for hearings.
As to whether there is any real connection to the Victorian jurisdiction, this will depend on the circumstances of your case. If you signed a contract and worked in Victoria and happened to travel for work and were dismissed interstate then it would be possible to sue in Victoria. However, if you simply worked interstate and had no real connection to Victoria, your employer may challenge the jurisdiction of the Court under the relevant Court Rules or may make an application to transfer the proceedings to another jurisdiction under the Service and Execution of Process Act 1992 (Cth) (‘SEPA’).
In order to institute proceedings, the court in which the proceedings are brought must have jurisdiction to hear and determine the mater. To establish whether the court has jurisdiction, reference needs to be had to the relevant Court’s governing legislation and Rules.
For example, if proceedings were initiated in the County Court of Victoria, you would need to refer to the County Court Act 1958 (Vic). Section 37(1) outlines the extent of the court’s jurisdiction as follows:
The court has jurisdiction to hear and determine-
(a) all applications, claims, disputes and civil proceedings regardless of the type of relief sought or the subject-matter as are not by this or any other Act excluded from its jurisdiction; and
(b) all civil proceedings against municipal councils in respect of loss or injury sustained by persons or property by reason of accidents, upon or while using any highway, street, road, bridge, ferry or jetty or upon or in or while using any paths or any land or building under the control of a municipal council; and
(c) all other civil proceedings in respect of which jurisdiction is given to the court by this or any other Act.
Section 36 outlines the extent to which the court has power to hear and determine matters that arise outside of Victoria as follows:
The Court shall have power to hear and determine every proceeding in respect of which jurisdiction is conferred upon it by this or any other Act, notwithstanding that part of the cause of action arose outside Victoria, provided that a material part of the cause of action arose within Victoria, and shall have power to hear and determine every such proceeding notwithstanding that the whole cause of action arose outside Victoria, provided that the defendant or accused resided within Victoria at the time of the service of the originating process upon such defendant or accused.