Two bites of the dismissal cherry not allowed

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Two bites of the dismissal cherry not allowed

A general protections application has been dismissed because the employee had also made a complaint to the Australian Human Rights Commission. Lodging more than one compensation claim for the same matter was a breach of multiple actions provisions in the Fair Work Act 2009.

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A general protections application to the Fair Work Commission, filed by a woman after she had made a complaint to the Australian Human Rights Commission, has been dismissed.

Lodging more than one compensation claim, under different legislation, for the same matter was a breach of multiple actions provisions in the Fair Work Act 2009.

[Full text of this case: H v Wakerley and Anor [2016] FWC 4989 (26 July 2016).]

Discrimination and victimisation


The woman,whose employer Arthur J Gallagher Australia & Co (Aust) Pty Ltd, terminated her employment in January 2016, made a complaint about her dismissal to the Australian Human Rights Commission in February 2016. She claimed her employer had discriminated against her and victimised her in connection with the dismissal.

On the same day, the woman made a general protections application according to s365 of the Fair Work Act 2009 to the Fair Work Commission against two individuals of her employer’s company.

On the application form, she admitted she had made another claim relating to what she regarded as her unfair dismissal. She said there was ‘no issue of double jeopardy’ because the two individuals in the second application had not employed her and therefore could not have been in a position to dismiss her.

In the Fair Work Commission, the employer submitted that the woman’s general protections application was a breach of the prohibition against multiple actions or complaints as set out in s725 of the Fair Work Act.

Complaint filed first to Human Rights Commission


Deputy president Kovacic established when the two applications had been lodged. He found the difference in timing had been only a matter of minutes but the complaint to the Human Rights Commission had definitely been filed first.

In both the general protections application and the complaint, the woman had sought compensation for past economic loss, future economic loss, general damages for pain and suffering etc., and reimbursement of medical and legal costs.

In a schedule to the general protections application, she had characterised the two individuals as accessories to her employer’s decision to dismiss her.

This examination of the two applications made it clear the relationship between them was direct and real. They did not relate to separate matters.

The Fair Work Commission confirmed the employer’s view that s725 of the Fair Work Act functioned as a bar to the general protections application because it replicated the complaint made to the Human Rights Commission.

The general protections application was dismissed.

The bottom line: The general rule is that a litigant cannot pursue concurrent lines of recovery in relation to the same wrong suffered or the same factual circumstance giving rise to a possible legal remedy.

H v Wakerley and Anor [2016] FWC 4989 (26 July 2016)

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