Jurisdictional objections can sometimes come as an afterthought when employers are faced with defending a claim in the Fair Work Commission (FWC). It’s very easy to get caught up in who-said-what-and-when and forget that if a valid jurisdictional objection is available, you might not have to defend a claim at all. In a recent decision of the FWC, an employer successfully argued that it did not have to respond to an employee’s general protections application because it was jurisdictionally barred.
In Hazledine v Waverley and Gidding [2016] FWC 4989, the employee was barred from bringing her general protections application against two former colleagues because she had already lodged a complaint with the Australian Human Rights Commission (AHRC) against her employer in relation to the same circumstances surrounding her dismissal.
The Fair Work Act 2009 (Cth) (FW Act) prevents “double dipping” and says that an employee cannot make a FWC application “in relation to” their dismissal if they have already made an application or complaint under another law of the Commonwealth, or another State or Territory – such as a complaint to the AHRC under the Sex Discrimination Act 1984 (Cth), as was the situation in this case.
The employee argued that she should be allowed to bring her FWC application because it was not “in relation to” her dismissal in the relevant sense. The employee submitted that only her employer could dismiss her and the named respondents in her FWC application were not her employer, therefore the FWC application was not “in relation to” her dismissal.
The employee also argued that the jurisdictional objection should not be upheld because the respondents in the two applications were different – the AHRC complaint was against her employer whereas the FWC application named two of her former colleagues as the respondents.
The FWC found that the events described and the material relied upon in both the FWC application and the AHRC complaint were substantially the same, as were the remedies that the employee was seeking. The FWC also found that in both the FWC application and in the AHRC complaint, the employer and the two colleagues were described as contributing to the employee’s dismissal and accordingly the alleged distinction between the respondents was not real.
In the end, the FWC held that the employee was barred from bringing her FWC application and the application was dismissed.
The lesson for employers from this case is to carefully consider all possible jurisdictional objections when faced with defending a claim in the FWC. In particular, bear in mind that an employee cannot make a FWC application relating to their dismissal if they have already lodged a claim or complaint about their dismissal in another jurisdiction.
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