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Full Bench to make determination on employee ‘double dipping’ provisions

The Full Bench of the Fair Work Commission has given leave to an employee to appeal a decision made by a single member of the Commission.

In this case, the employee was employed from 22 October 2012 until her dismissal on 21 January 2016. Before she was dismissed, the employee alleged that her employer, and two of its managers, had ‘breached various statutory provisions in relation to her ongoing employment.”

The employee subsequently made a complaint to the Australian Human Rights Commission (AHRC) against her employer in relation to her dismissal, alleging breaches of discrimination legislation.  She then made a general protections application against the two managers alleging breaches of the Fair Work Act 2009 (Act).

Interestingly, the managers were not parties to the AHRC complaint, nor was the employer a party to the general protections complaint.

The Deputy President who heard the matter, initially determined that because the employee had made the complaint to the AHRC in relation to her dismissal, and as the Deputy President considered her general protections claim was also related to her dismissal, then the employee was barred from making the general protections claim as the Act has provisions that operate to prevent an employee making multiple claims with regard to dismissal.

The employee contested that the general protections claim was made in relation to her dismissal.  The employee argued that the part of the Act relied on by the Deputy President does not apply in circumstances where her AHRC complaint, on the one hand, and her general protections application, on the other hand, involve separate respondents, separate causes of action, and separate relief.”

The Full Bench allowed the appeal noting that it potentially “had broad significance” and that it was in the public interest for the issue to be considered.

Employers will be interested in the outcome of this appeal, as if the employee is successful in her bid to have her general protections claim heard, then that may result in other employees crafting their complaints in a way that would allow them access to multiple jurisdictions, and therefore multiple remedies if successful.

Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers.www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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