Ms Karren Hazledine v Mr Kirk Wakerley
[2016] FWCFB 6892
•28 SEPTEMBER 2016
| [2016] FWCFB 6892 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Mr Kirk Wakerley; Mr Ben Giddings
(C2016/4915)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 28 SEPTEMBER 2016 |
Appeal against decision [[2016] FWC 4989] and order [PR583263] of Deputy President Kovacic at Melbourne on 26 July 2016 in matter number C2016/264 – permission to appeal granted
[1] Ms Hazledine has applied for permission to appeal against the Decision 1 and Order2 made by Deputy President Kovacic dismissing her general protections application against Mr Wakerley and Mr Giddings.
[2] Ms Hazeldine was employed by Arthur J Gallagher & Co. (Aus) Limited (AJG) from 22 October 2012 until her dismissal on 21 January 2016. Prior to the termination of her employment, Ms Hazledine had asserted, through her lawyers, that AJG’s Human Resources Manager, Mr Giddings, and her immediate manager, Mr Wakerley, and her employer, AJG, had breached various statutory provisions in relation to her ongoing employment.
[3] Following the termination of her employment, Ms Hazledine lodged a complaint with the Australian Human Rights Commission (AHRC) against AJG, in relation to her dismissal, and a general protections application against Mr Wakerley and Mr Giddings, in relation to alleged breaches by them of sections 362 and 550 of the Fair Work Act 2009 (Cth) (the Act).
[4] In her AHRC complaint, Ms Hazledine alleges that AJG has contravened the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth).
[5] In her general protections proceedings, Ms Hazledine’s allegations against Mr Wakerley and Mr Giddings relate, in part, to events that took place well before Ms Hazledine’s dismissal and, in other parts, to the role of Mr Wakerley and Mr Giddings in the decision by AJG to terminate her employment.
[6] AJG is not a party to Ms Hazledine’s general protections application. Neither Mr Wakerley nor Mr Giddings is a party to the AHRC proceedings.
Conclusion on permission to appeal
[7] The Deputy President concluded that Ms Hazledine’s general protections application was (a) made after her AHRC complaint had been made and (b) in relation to her dismissal, with the result that s.725 of the Act operated as a bar to her general protections application against Mr Wakerley and Mr Giddings. 3 Section 725 is in Part 6-1, Division 3 – preventing multiple actions of the Act.
[8] Ms Hazledine does not contest the Deputy President’s finding that her general protections application was made after her AHRC complaint had been made, but she does challenge the Deputy President’s conclusion that her general protections application was in relation to her dismissal.
[9] Ms Hazledine submits that s.725 of the Act is not engaged in circumstances where her AHRC complaint, on the one hand, and her general protections application, on the other hand, involve separate respondents, separate causes of action, and separate relief.
[10] The issue the subject of this appeal has not been considered by a Full Bench of the Commission. It potentially has broad significance. In our view, it is in the public interest for this issue to be considered in detail by a Full Bench of the Commission. We therefore grant permission to appeal.
[11] Directions for the conduct of the appeal will be issued shortly.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr M Harmer, solicitor from Harmers Workplace Lawyers, for the applicant;
Ms R Nelson, of counsel, for the respondents.
Hearing details:
2016.
Sydney:
September, 6.
1 [2016] FWC 4989
2 PR583263
3 Decision at [5]
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