Kianah Ashton v Aldi Stores
[2025] FWC 2388
•15 AUGUST 2025
| [2025] FWC 2388 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kianah Ashton
v
Aldi Stores
(C2025/3512)
| COMMISSIONER SIMPSON | BRISBANE, 15 AUGUST 2025 |
Multiple applications issue under s.725 – unfair dismissal application filed first – general protections application filed second – Applicant has provided medical certificates outlining incapacity to participate in Commission proceedings since February 2025 – second application (general protections application) dismissed due to being invalidly made – s.587(1)(c).
Ms Kianah Ashton (Ms Ashton/the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), alleging she was unfairly dismissed from her employment with Aldi Stores (the Respondent) and later, that she was dismissed in contravention of the general protections provisions under s.365 of the Act.
I have determined to dismiss the application made under s.365 of the Act for the following reasons. A relevant chronology of matters currently before me is set out below. This chronology excludes some correspondence which it is unnecessary to refer to.
Background
On 9 January 2025, the Applicant lodged an application for unfair dismissal remedy (the First Application).
On 22 January 2025, the Respondent filed a Form F3 response to the application and a Form 53 seeking leave for the Respondent to be represented by Seyfarth Shaw Lawyers and advising that the name of the Lawyer was Ben Dudley/Freya Booth.
The matter was listed for a conciliation before a staff conciliator on 14 February 2025. This conciliation did not proceed at the Applicant’s request on health grounds.
The matter was allocated to my chambers on 20 February 2025 and listed for a directions hearing on 27 February 2025. The directions hearing was cancelled as the Applicant advised chambers she was unable to proceed on health grounds and provided a medical certificate to chambers to confirm the reason for the adjournment.
On 27 February 2025, chambers then sought medical advice from the Applicant regarding her capacity to attend a rescheduled case management/directions conference the following week and to provide this by 5:00pm AEST Monday 3 March 2025.
On 1 March 2025, the Applicant sent an email to chambers seeking an adjournment until mid-May 2025, and that the Applicant had engaged a lawyer to handle the matter.
At 10:41am on 3 March 2025, chambers sent an email to the Applicant advising if the Applicant is now represented, to have the representative please fill out a Form F53 which was attached and send it to chambers so their details can be added to the file. This email also advised I was not willing to adjourn the matter for the length of time sought, without any documents to support this request. If documents were not provided by 5:00pm AEST Tuesday 4 March 2025, the matter would be listed for a directions conference again at 2:00pm AEST on Thursday 6 March 2025.
At 2:14pm on 3 March 2025, the Applicant provided a further medical certificate to chambers to support that she had caring responsibilities on 3 March 2025.
At 3:03pm on 3 March 2025, chambers emailed the Applicant noting the certificate for 3 March 2025 and reiterated that I was not willing to adjourn the matter for the length of time sought without supporting documents to support the adjournment request until mid-May 2025. The email also advised that should supporting documentation not be received by 5:00pm AEST Tuesday 4 March 2025, the matter will be listed for a directions hearing at 2:00pm AEST on Thursday 6 March 2025.
The directions hearing for 6 March 2025, was subsequently cancelled because of Cyclone Alfred and relisted for 2:00pm on Friday 14 March 2025.
On 12 March 2025, the Applicant provided medical information to chambers from a medical practitioner in support of an adjournment request from 12 March 2025 to 12 June 2025. The Respondent was not provided the specific medical information but was notified that information had been received from the Applicant. I did not determine to adjourn the matter for a three-month period at this time.
On 14 March 2025, the Respondent raised concerns about the length of the proposed adjournment.
On 14 March 2025, chambers sent an email to the parties requesting the Applicant provide an update on her capacity to proceed with her application for unfair dismissal remedy (in the form of medical evidence) in one month, and to provide updated medical evidence on Monday 14 April 2025 by 5:00pm AEST.
On 14 April 2025, the Applicant provided chambers with updated medical information from a medical practitioner in support of the matter being adjourned for a further three months.
On 15 April 2025, an email was sent from chambers to the Applicant asking for consent to share the updated medical information with the Respondent and/or their representative Seyfarth Shaw.
On 24 April 2025, chambers sent a further email to the Applicant advising that if the Applicant did not respond, I had determined it would be appropriate to disclose the medical information to the Respondent’s lawyers but not to the Respondent themselves. It also advised that I intended to issue an order to that effect to accompany the provision of the medical evidence to the Respondent’s lawyers by close of business Tuesday 29 April 2025, in the absence of an objection. A text message was also sent to the Applicant from the Commission advising the Applicant to check her email account.
On 30 April 2025, I issued a confidentiality order that the relevant medical evidence be made available to the Respondent’s lawyers only and not to the Respondent.
The file records that on 13 May 2025, the Applicant contacted the Commission by phone advising that she had lodged a General Protections application on 30 April 2025, and that she had been given legal advice to lodge a second application as the General Protections application is more relevant to the situation. The file note records that the Applicant had also made a complaint to the Australian Human Rights Commission. The file note records that the Applicant stated she could contact the Human Rights Commission and my chambers and advise of her decision to either discontinue all applications or continue with the Unfair Dismissal application or relodge the general protections application.
On 23 May 2025, the General Protections application was allocated to my chambers (the Second Application).
On 23 May 2025, an email was sent to the Applicant from chambers as follows:
“Dear Ms Kianah Ashton,
It appears that you have made two applications against Aldi Stores in relation to the same dismissal:
· U2025/279 - an unfair dismissal application filed at 4:29pm on 8 January 2025 (referred to in this email as the First Application);
· C2025/3512 – a general protections claim involving dismissal filed at 1:39pm on 30 April 2025 (referred to in this email as the Second Application).
The second application has been referred to Commissioner Simpson because he has carriage of the first application, which is the Unfair Dismissal application.
Section 725 of the Fair Work Act 2009 prohibits the making of multiple applications in relation to the same dismissal. Specifically, a second application must not be made in relation to the same dismissal if the first application had not concluded at the time the second application was made. There is more information about multiple applications in the Unfair Dismissals Benchbook (click here for more information).
Your Second Application cannot continue because of section 725 of the Act. Importantly, your Second Application cannot continue even if the First Application is discontinued or concluded because s.725 applies to the time that the Second Application was made.
This means that:
· the Second Application, being the General Protections claim, cannot continue. Please consider discontinuing your Second Application;
· you can choose to continue your First Application, being the Unfair Dismissal application;
· if you want to pursue a General Protections claim, you need to discontinue BOTH the First Application AND the Second Application and then file a third application, being a General Protections application. A 21 day time limit applies to General Protection applications involving dismissal and you might need to apply for an extension of time to lodge the third application.
In this regard please see the earlier Full Bench decision in Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at paragraphs [30]-[31].
If you contend that there is a legal basis by which the Second Application can continue, then please respond to this email explaining in brief terms why this is the case.
If you do not discontinue the Second Application, and you do not provide a reasonable legal basis to show that the Second Application can continue, Commissioner Simpson will consider dismissing the Second Application under s.587(1)(a) of the Act. Section 587(1)(a) allows the Commission to dismiss applications without the need for a protracted hearing if the application was not made in accordance with the Act.
Commissioner Simpson is prepared to give you time to decide what to do about your two applications.
Could you please tell us by reply email by no later than 4:00pm AEST (QLD Time) on Friday, 6 June 2025:
· that you want to discontinue your Second Application and continue your First Application; OR
· that you want to discontinue both your First Application and your Second Application; OR
· any submission you would like to make about the legal basis upon which the Second Application can continue; AND/OR
· any submission you would like to make as to why the Commissioner should not dismiss the Second Application under s.587(1)(a).”
On 3 June 2025, the Respondent filed a Form F1 Application in both matters U2025/279 and C2025/3512. The application was in summary, for C2025/3512 to be dismissed, and for the U2025/279 to be set down for a case management hearing. It was submitted there is inconsistency between the Applicant being too unwell to participate in the Unfair Dismissal application and be able to submit a separate General Protections application.
On 4 June 2025, chambers sent an email to the parties advising that I noted the Respondent’s correspondence and their Form F1 application, and had determined to wait until either a response is received from the Applicant regarding the multiple application issue email, or until the response deadline of Friday, 6 June 2025, has passed.
On 5 June 2025, the Applicant sent email correspondence to chambers as follows:
“I am writing to clarify that I have submitted both an Unfair Dismissal application and a General Protections application in relation to my recent termination.
I understand that both applications cannot proceed at the same time. I am not in a position to withdraw both applications, as this would leave me with no avenue for my matter to be heard. Therefore, I wish to confirm that I would prefer for my General Protections application to proceed over the Unfair Dismissal application.
I also wish to inform the Commission that I am currently on a medical certificate. Although I received help to submit my General Protections application later than ideal, I experience both good and bad days due to my health. ALDI was aware of my medical conditions prior to my dismissal, and I believe my termination was an act of retaliation after I made a complaint to the Human Rights Commission, requested specific working hours based on my medical needs, and disclosed my disabilities.
I had also been suspended from work for eight months after disclosing my disabilities and my carer responsibilities for three people with disabilities. These factors are relevant to why my complaint progressed and why I believe the General Protections application is the more appropriate avenue.
As I am not a doctor or a lawyer, I will need to seek appropriate medical and legal advice before I can make any decisions regarding the possibility of bringing my conciliation forward. This may take some time, and I appreciate the Commission’s patience and understanding during this process.
If ALDI wishes to have the matter expedited, I am open to conciliation being brought forward at their own expense, including covering the cost of any necessary medical or legal support I may require—such as consultations with a doctor or other relevant health professionals—to participate meaningfully.
Please let me know if you require any further information.”
On 17 June 2025, the Applicant sent an email to chambers raising a concern about Ms Booth, a lawyer at Seyfarth Shaw being involved in the Applicant’s matters as Ms Booth had previously been employed at the Commission.
On 18 June 2025, chambers sent email correspondence to the parties acknowledging the Applicant’s email of 17 June and requesting that the Applicant provide a medical certificate confirming the Applicant’s fitness to participate in proceedings before taking any further steps in relation to the matters. The Applicant was asked to provide a medical certificate by 25 June 2025.
On 26 June 2025, the Applicant provided a medical certificate for the period from 26 June to 25 July 2025 indicating she was not fit to participate in proceedings before the Commission.
On 27 June 2025, chambers sent email correspondence to the parties confirming receipt of the medical certificate and that I advised that due to the medical advice that the Applicant is not fit to participate in proceedings before the Commission until at least 25 July 2025, the Commission will not be engaging with the Applicant, progressing the Applicant’s concerns regarding Ms Booth, or making any decision regarding the multiple applications issue by email, phone or listing, until a medical certificate confirming the Applicant’s capacity to engage with the Commission is received:
“When a medical certificate or medical advice confirming the Applicant is fit to participate in proceedings before the Commission is received, all questions will be engaged with at a directions listing. Until that time, the Commission awaits updated medical advice from the Applicant’s treating doctors confirming her capacity, and to please continue to provide updated medical certificates to Chambers, to ensure the Commission can progress the matter as soon as the Applicant is able.”
On 9 July 2025, a copy of the Applicant’s complaint made about the handling of her applications by the Commission was sent to [email protected] was provided to chambers.
On 10 July 2025, an email was sent by chambers to the parties confirming receipt of the email sent by the Applicant to the inquiries team at the Commission. It repeated my earlier request for the provision of a medical certificate from the Applicant, in order to program the matter for directions and also requested a response from the Respondent’s representative regarding the concern about Ms Booth by 25 July 2025. The email advised the Respondent’s representative’s response, and any reply the Applicant would like to make, will be dealt with at a listing when the Applicant has confirmed her capacity to attend one.
On 18 July 2025, the Applicant sent an email to both chambers and [email protected] requesting a complete copy of the case file as the Applicant had been asked to provide these records to the Australian Human Rights Commission. On the same day, chambers directed the Applicant to the relevant sections of the Fair Work Commission webpage in relation to Freedom of Information and Requesting Documents.
On 25 July 2025, the Respondent’s representative provided a submission opposing the suggestion that Ms Booth should not represent the Respondent.
On 29 July 2025, the Applicant responded to this submission in summary maintaining the objection to Ms Booth.
On 31 July 2025, the Applicant again corresponded with the Commission about accessing documents on her case files.
On 4 August 2025, chambers sent email correspondence to the parties in response to the Applicant about accessing documents including that it could not provide a party legal advice.
On 5 August 2025, the Applicant sent an email to the Commission seeking clarification on whether permission had been granted for the Respondent to be represented and if so, who had been granted permission.
On 12 August 2025, the Applicant forwarded to chambers a further medical certificate stating she is unfit to attend work or meetings requiring significant attention or concentration from 5 August 2025 to 5 October 2025.
Consideration
Section 587 of the Act provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Up to this point in time it has been my view that all matters should be held over until such time as the Applicant was fit to proceed. As it is now apparent that the Applicant will not be fit to actively engage in the proceedings for a further period of several months, I have reached the conclusion that it is appropriate in all of the circumstances to at least deal with one element of the matters before me which I am satisfied I am able to determine as to the Commission’s jurisdiction, without the Applicant suffering prejudice by my doing so.
It is uncontroversial that the Applicant filed the General Protections application C2025/3512, after having filed the Unfair Dismissal application U2025/279. Without needing to hear any more from either party, it is clear the second application, being the General Protections claim, cannot continue in that circumstance despite the Applicant expressing a preference to continue with this application rather than the Unfair Dismissal claim. The Applicant has been previously asked to discontinue this application and has not done so. I have concluded in the absence of this application being withdrawn it is appropriate for it to be dismissed, as it is unarguable that it is barred from being made by the provisions in the Act preventing multiple applications. I have decided to exercise power under s.587(1)(c) to dismiss matter C2025/3512.
Section 587(1)(a) allows the Commission to dismiss applications without the need for a protracted hearing if the application was not made in accordance with the Act. An order to this effect will be issued separately and concurrently with this decision. This decision has been taken at my own initiative and is unrelated to any submission from the Respondent’s lawyers.
The Unfair Dismissal application U2025/279 remains a live matter before the Commission and the Applicant can choose to continue with this application when she is fit to do so. As C2025/3512 has been dismissed for the reasons set out above, if the Applicant wishes to pursue a General Protections claim, the Applicant will need to discontinue the Unfair Dismissal claim and then file a third application, being a General Protections application. As a 21-day time limit applies to General Protection applications involving dismissal, the Applicant will need to apply for an extension of time to lodge such an application.
The Applicant has raised a query as to whether the Respondent’s lawyers have been granted permission under s.596 of the Act to appear on behalf of the Respondent in the proceedings. I have not decided at this point as to whether the Respondent will be granted permission to be represented in the proceedings, as the Applicant has not been fit to engage in a hearing to hear arguments on the matter and for it to be determined. To be clear, to the extent that the Respondent’s lawyers have been engaging in correspondence with chambers and the Applicant, they do not yet have the status as a representative under s.596 and no correspondence from the Respondent’s lawyers has been taken into account in reaching this determination.
COMMISSIONER
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