Kianah Ashton v Aldi Stores - [2025] FWC 2388

[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…

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.

Continue reading Kianah Ashton v Aldi Stores

Details

AGLC: Kianah Ashton v Aldi Stores [2025] FWC 2388
Case: [2025] FWC 2388
Decision Date: 15 AUGUST 2025

CaseChat Overview and Summary

Kianah Ashton brought proceedings against Aldi Stores before the Fair Work Commission (FWC) in relation to her dismissal from employment. Ms Ashton first filed an unfair dismissal application under section 394 of the Fair Work Act 2009 (the Act), alleging that she had been unfairly dismissed. She later filed a second application alleging a contravention of general protections provisions under section 365 of the Act. The FWC was required to determine the admissibility of Ms Ashton's second application and whether it should be dismissed.

The FWC found that Ms Ashton had filed the general protections application after the unfair dismissal application had been made. Section 725 of the Act prohibits the making of multiple applications in relation to the same dismissal. Despite Ms Ashton's preference to continue with the general protections application, the FWC concluded that the application was invalidly made and had no reasonable prospects of success. The FWC exercised its power under section 587(1)(c) of the Act to dismiss the second application. The unfair dismissal application remains a live matter before the Commission, and Ms Ashton may continue with it when she is fit to do so. The FWC has not yet determined whether the Respondent will be granted permission to be represented by lawyers in the proceedings, as Ms Ashton has not been fit to engage in a hearing to hear arguments on the matter and for it to be determined.

The FWC dismissed the general protections application filed by Ms Ashton on the basis that it was unarguable that it was barred from being made by the provisions in the Act preventing multiple applications. An order to this effect will be issued separately and concurrently with this decision. This decision has been taken at the FWC's own initiative and is unrelated to any submission from the Respondent's lawyers. If Ms Ashton wishes to pursue a general protections claim, she 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 protections applications involving dismissal, Ms Ashton will need to apply for an extension of time to lodge such an application.

Orders