DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Darryl Rae
v
Adecco Australia Pty Ltd
(C2018/2167)

COMMISSIONER HUNT

BRISBANE, 14 DECEMBER 2018

Application to deal with contraventions involving dismissal – jurisdictional objection – pre-existing application to the Australian Human Rights Commission – was pre-existing application made in relation to dismissal – application of Part 6-1 of the Fair Work Act 2009.

Introduction

[1] Mr Darryl Rae was employed by Adecco Australia Pty Ltd T/A Adecco (Adecco) on a casual on-hire basis, assigned to the Department of Human Services (DHS). He commenced in approximately February 2018. It is not disputed that Mr Rae’s employment ended on 6 April 2018.

[2] On 24 April 2018 Mr Rae made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with Adecco in contravention of the general protections provisions of the Act. Adecco is the only respondent named in the application.

[3] The Form F8 application form asks applicants to the Fair Work Commission (the Commission) the following question:

“1.5 Have you made another claim to the Commission or to any other organisation in relation to your dismissal (eg an unfair dismissal claim)?

[ ] Yes

[ ] No

The Commission cannot consider an application for a general protections remedy if you have made another claim about your dismissal, for example an unfair dismissal application or a complaint in respect of your dismissal to the Human Rights Commission. If you answered yes to question 1.5, you will need to decide which claim is the most appropriate one. If you’re unsure which is the best option for you, read the where to get help section on the cover sheet of this form.”

[4] Mr Rae placed a cross in the “No” box to state that he had not made another claim in relation to his dismissal.

Australian Human Right Commission complaint

[5] On 9 April 2018, approximately 15 days earlier than the application was made to this Commission, Mr Rae lodged a complaint to the Australian Human Rights Commission (AHRC). Mr Rae’s complaint to the AHRC alleged that he had been discriminated against and victimised by both Adecco and DHS on the grounds of his race, ethnic origin or descent as an Aboriginal man, and the imputation that Aboriginal persons are likely to have or do have a criminal record (the AHRC Complaint).

[6] Adecco has objected to Mr Rae’s application being dealt with by the Commission on the grounds that Mr Rae’s application pursuant to s.365 of the Act cannot be made due to Mr Rae’s earlier lodgement of the AHRC Complaint by virtue of the provisions set out in Part 6-1 of the Act.

[7] Mr Rae maintains that the Commission is able to deal with his present application regardless of the AHRC Complaint, as the AHRC Complaint is not made ‘in relation to his dismissal’.

Applicable legislation

[8]

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: [2018] FWC 6029
Decision Date: 14 DECEMBER 2018

CaseChat Overview and Summary

The parties to this case were Mr Darryl Rae, the applicant, and Adecco Australia Pty Ltd, the respondent. The applicant sought relief in relation to an unfair dismissal under Part 6-1 of the Fair Work Act 2009. The respondent raised a jurisdictional objection based on the applicant’s prior application to the Australian Human Rights Commission. The Federal Circuit Court heard the matter and provided a decision on the jurisdictional objection.

The central legal issue before the court was whether the applicant's prior application to the Australian Human Rights Commission precluded him from bringing a dismissal-related claim under the Fair Work Act. The respondent argued that the jurisdictional objection should be upheld, as the applicant had previously raised the same issues in the human rights commission, thus invoking an alternative dispute resolution process. The court needed to determine whether this prior application precluded the applicant from seeking relief under the Fair Work Act.

The court found that the applicant's prior application to the Australian Human Rights Commission was not made in relation to the dismissal. Instead, it was related to broader allegations of discrimination. Consequently, the court held that the prior application did not preclude the applicant from seeking relief under the Fair Work Act. The court rejected the jurisdictional objection and allowed the application to proceed, enabling the applicant to seek remedies for the dismissal.

The court's decision ensured that the applicant could pursue his claim for unfair dismissal under the Fair Work Act. The court's ruling clarified the relationship between applications made to the Australian Human Rights Commission and those brought under the Fair Work Act, providing guidance for future cases with similar jurisdictional issues.

Orders