Dismissals and discrimination / general protections claims: Watch out for the double dip!:Update February [...]

Key points

• Employees are prohibited from taking multiple actions 'in relation to' their dismissal.
• Recent case law suggests that the circumstances in which there may be a sufficient relationship between the two sets of proceedings to stop the second in time from proceeding, may be broader than previously thought.

Next steps

• Employers should carefully consider, and take advice on, the question of how to deal with multiple proceedings relating to the same dismissal.

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Employers need to be aware that the Fair Work Act 2009 (FW Act) prohibits employees from taking multiple actions ‘in relation to’ their dismissal.

Employees can choose, for example, to claim unfair dismissal before Fair Work Australia; or claim that their termination was unlawfully discriminatory under State-based anti-discrimination legislation; but cannot take both actions.

These provisions of the FW Act (sections 725-732) (FW Act anti-double dipping provisions) are important, and reasonably complex in their wording. 
Despite their existence, we have observed an increasing tendency on the part of employees and their representatives to issue proceedings under two different statutes in separate jurisdictions: but seeking to ‘split’ the claim so as not to offend the FW Act anti-double dipping provisions.

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