Progress report ACD 86 of 2013 Banerji v Bowles

LaLegale update: ACD86 of 2013.

Today, the parties appeared in the Federal Court and submitted consent orders with the result that (1) The Appellant’s Notice of Appeal be discontinued with no order as to costs, and (2) The Cross-Appellant’s Cross-Appeal be discontinued with no order as to costs.

The reason for these consent orders was to ‘tidy up’ matters procedurally, because all court proceedings up to this point have dealt with applications for injunctions to prevent dismissal. Now that termination has taken effect, the appeal before the Federal Court was, in a sense, moot.

The Court noted that the Appellant had filed a general protections dispute application in the Fair Work Commission on 16 October 2013, and that the Respondent had given an undertaking to the Appellant that it will not raise the question of issue estoppel in any way, as a defence or otherwise, in any general protections court application instituted by the Appellant in relation to that dispute.

The Fair Work Commission matter, C2013/6447, is listed for Conference before Commissioner Deegan at 2.00pm on Wednesday 13 November 2013, at the Fair Work Commission, CML Building 17-21 University Avenue, Canberra.

Should there be no agreement at the Conference, Commissioner Deegan will issue a certificate which will enable the matter to be returned the Federal Court – either the Federal Circuit Court, or the Federal Court. While the Fair Work Commission can hear an unfair dismissal matter, it cannot hear an adverse action matter which involves unlawful dismissal.

While the Public Interest Advocacy Centre (PIAC) has let me know that it will not act on the constitutional aspect of the matter to the High Court, thus leaving that action to be taken up at a later stage, PIAC has agreed to support me in the matter before the Fair Work Commission.

The question of freedom of political opinion will arise in the matter before the FWC but in a slightly different way. In order to understand the difference, it is necessary to understand what is meant by ‘adverse action’ under the Fair Work Act 2009.

The general provisions of the Fair Work Act aim to protect employees from adverse action in breach of a number of defined rights. Those rights are categorised as either workplace rights, industrial activities, other protections such as freedom of political opinion, and sham arrangements.

My matter in the Fair Work Commission is therefore not an ‘unfair dismissal’ action but an ‘unlawful termination’ action where the applicant alleges that she has been terminated for an unlawful reason – expressing or holding, a political opinion. In my case, my application to the court is that the dismissal was not only unlawful, but that it was the last in a lengthy series of adverse actions on the part of the employer over a substantial period of time – adverse actions which were taken against me for seeking to uphold workplace rights.

One can never second guess what a court or tribunal will do. One can only take the steps as they become necessary. Discovering what those proper steps might exactly be, is not always a straight-forward task.

 

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About lalegale

Legal and psychological advocate for freedom of political communication.
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