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Commission throws out ‘incompetent’ unlawful dismissal claim

Unfair dismissal application was not made in accordance with the relevant legislation.
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Commission throws out ‘incompetent’ unlawful dismissal claim

Commission throws out ‘incompetent’ unlawful dismissal claim

10 February 2021

By Gaby Grammeno

A commission has rejected a former university employee’s ‘largely incompetent’ bid to claim that his employment was unlawfully terminated. His application for an unfair dismissal remedy was not made in accordance with the relevant legislation, and the many attempts to help him regularise his application were of no avail.

Sacked for misconduct

The worker, who was employed as a professional officer in the School of Electrical Engineering and Telecommunications at the University of NSW, alleged that he had been bullied at work. He sought a stop-bullying order in 2018 but was not successful, then appealed to the Fair Work Commission to be able to bring his wife to work for ‘emotional support’, but lost this appeal in January 2020.

The following month he was sacked for what his employer viewed as misconduct. The officer, however, believed he had been dismissed because of his complaints about his employment. He also alleged that he was the victim of discrimination on the basis of his political opinion, his age, ethnicity and a disability.

Discrimination on these grounds is prohibited by s772 of the Fair Work Act 2009, and a worker alleging that his employer has contravened this section is entitled under s773 of the Act to apply to the Fair Work Commission to deal with the issue.

The officer accordingly made a s773 application to the Fair Work Commission. However, the Act also includes a provision (s723) stating that a person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

His employer therefore objected, maintaining that the officer could not legally make an unlawful dismissal application under s773 because he was entitled to make a ‘general protections’ claim.

The general protections provisions of the law are intended to protect workplace rights, provide protection from workplace discrimination, and provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

Moreover, the employer argued that over an 18-month period, the officer had failed to comply with lawful and reasonable directions to be assessed for a return to work. While he was away from work, he had been diagnosed with a ‘delusional disorder’, meaning he had a set of fixed beliefs that did not change, even when presented with conflicting evidence.

Despite the employer’s objections, however, and despite the fact that the commissioner dealing with the case described the officer’s claim as ‘largely incompetent’, the claim was allowed to proceed, with the commission inviting the officer in August 2020 to re-submit his application but confine it to the allegation of discrimination on the grounds of political opinion.

In the commission

The commissioner was satisfied that in respect of six out of the seven grounds the officer was alleging in his s773 application, he could have made a general protections court application; and therefore because of s723, he was statute barred from making a s773 application in relation to those matters.

The commissioner also noted that the professional officer had been notified of the problems with his s773 application and invited to remedy those problems, but had chosen not to do so.

The commissioner said that he’d considered allowing the officer a further opportunity to correct or amend his application, but added that ‘you can only “lead a horse to water” so many times’.

Further, he observed that the university had filed its objection to the application more than 10 months ago. In fairness to the employer, ‘it is entitled to have the matter finally determined (at least at first instance)’.

The commissioner was therefore persuaded that he should exercise his discretion under the Act and dismiss the officer’s application.

The bottom line: Applications to the Fair Work Commission for a remedy for unlawful termination of employment must be made in accordance with the requirements of the Fair Work Act 2009.

Read the judgment

Dr Daniel Krcho v University of New South Wales T/A UNSW Sydney [2021] FWC 140 (1 February 2021)

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