DECISION

Fair Work Act 2009
s.365—General protections

Bridie Flanagan
v
Reliance Pty Ltd
(C2020/6121)

COMMISSIONER YILMAZ

MELBOURNE, 20 MAY 2021

Application to deal with a contravention of the general protections’ provisions involving dismissal – jurisdictional objection - Application filed with the NSW Anti-Discrimination Tribunal and whether the application is prohibited by s.725.

Introduction

[1] Ms Bridie Flanagan filed a general protections dispute involving dismissal under s. 365 of the Fair Work Act 2009 (the Act) with the Fair Work Commission (Commission) on 5 August 2020. Ms Flanagan contends that Reliance (Australia) Pty Ltd (Reliance) contravened the general protections provisions in relation to a workplace right and discriminated on the basis of sex. She further contends that her termination of employment is an adverse action, and she is seeking compensation.

[2] Ms Flanagan was employed by Reliance from 2017 until her dismissal on 16 July 2020. Ms Flanagan filed the application within the 21-day time limit pursuant to s.366(1) of the Act.

[3] The alleged contravention emanates from an incident between herself and one of the owners/directors at the Christmas function on 14 December 2019, and Ms Bridie alleges that her complaint regarding the incident was not properly investigated, that instead of dealing with her complaint she was threatened with termination of employment over the misuse of her work mobile phone and personal sexual activity and that she was subsequently dismissed.

[4] Ms Bridie’s application lists the sections of the Act that she says that Reliance contravened. Those provisions concern:

S.340 Protection of Workplace rights

S.351 discrimination on the basis of sex.

[5] The actions that Ms Bridie states that are in contravention of the general protections’ provisions include:

• That she exercised her workplace right to make a complaint of sexual harassment and assault against a co-owner and director of the business;

• That she further exercised her right to request an investigation of her complaint of sexual harassment and assault;

• The Respondent “refused” to investigate the complaint;

• That the refusal to investigate Ms Bridie’s complaint and instead investigate allegations of serious misconduct, in particular the sexual activities of Ms Flanagan was in her view discrimination; and

• The refusal to investigate Ms Bridie’s complaint, the investigation into her sexual conduct and personal communications and subsequent dismissal are in contravention of s.340 (1)(a)(ii) and s.351 (1) of the Act.

[6] Ms Flanagan did not indicate in her application that she had filed a claim in relation to her dismissal in another jurisdiction. The question on the form asks: “Have you made another claim to the Commission or to any other organisation regarding your dismissal (e.g an unfair dismissal application)?” Ms Bridie marked “no”.

[7] Ms Bridie filed a claim with the Anti-Discrimination Board of NSW (the claim) on 17 March 2020, prior to her dismissal, and it is this claim that Reliance relies on to object to the s.365 application.

[8] On filing its response to Ms Bridie’s application, Reliance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 2663
Decision Date: 20 MAY 2021

CaseChat Overview and Summary

Bridie Flanagan, an employee, filed an application in the Fair Work Commission against her employer, Reliance Pty Ltd, challenging the legality of her dismissal. The dispute centres on whether Flanagan's dismissal was in contravention of the general protections provisions under the Fair Work Act 2009 (Cth). Flanagan claims that her dismissal was unfair and contrary to the general protections provisions. In response, Reliance Pty Ltd raised a jurisdictional objection, arguing that the application was not only filed with the NSW Anti-Discrimination Tribunal but also that it was prohibited by section 725 of the Fair Work Act 2009 (Cth).

The legal issues before the court were whether Flanagan's application was within the jurisdiction of the Fair Work Commission and whether section 725 of the Fair Work Act 2009 (Cth) applied to bar the application. The court had to determine if the application was appropriately filed and whether the tribunal had the authority to hear the matter. The court also needed to consider the specific provisions of section 725 and how they applied to Flanagan's application.

The court found that the application was appropriately filed with the Fair Work Commission and that there was no jurisdictional bar under section 725. The court held that the application was within the tribunal's jurisdiction and that Flanagan's claims were not precluded by any other provisions of the Act. The court ruled that Flanagan's application was admissible and that the matter could proceed. The court directed that the matter be listed for a further hearing to determine the merits of Flanagan's claims against Reliance Pty Ltd.

Orders