Employers should be alert to employees who attempt to `double dip' when it comes to employment claims.
Although an employee is entitled to challenge a discriminatory dismissal either under the adverse action provisions of the Fair Work Act 2009 (Cth) (FW Act) or under state or federal discriminations laws, they can't do both. This is the effect of section 725 of the FW Act which provides that an employee is precluded from pursuing more than one type of claim in respect of the same subject matter.
If, for example, an employee considers that their dismissal was discriminatory, they must elect whether to pursue either an adverse action claim in the Fair Work Commission (FWC) and Federal Court or Federal Circuit Court, or to pursue a discrimination claim either in the Australian Human Rights Commission (AHRC) or in the applicable state equal opportunities tribunal. Equally, an employee who claims their dismissal was unfair cannot also claim it constituted adverse action.
An employer faced with an employee who has tried their hand at a discrimination claim before issuing an adverse action or unfair dismissal claim should object to the FWC's jurisdiction to hear the claim.
A word of warning though - an employee was recently granted leave to appeal a claim in which her adverse action claim had been dismissed under section 725 because she had issued proceedings in the AHRC challenging her dismissal. In the case of Ms Karren Hazledine v Mr Kirk Wakerley; Mr Ben Giddings  FWCFB 6892, the Full Bench of the FWC, in granting leave to appeal, recognised the decision may be less straight forward in cases where an employee argues, as in this case, that the acts leading up to their dismissal and the dismissal itself are two separate causes of action, the former constituting adverse action and the latter discrimination.
The merits of the appeal will now be determined by the Full Bench of the FWC watch this space...!