Links between compensation litigation and unfair dismissal applications
Qantas Airways Limited v L  FWCFB 3582 (12 June 2014)
What happens when an applicant pursues claims based on the same factual matrix in two jurisdictions?
This issue has now been examined by a Full Bench of the Fair Work Commission.
“L” had been an airport baggage handler employed by Qantas since December 1989 and had been injured on a number of occasions in the course of his employment. By June 2001 he required modified duties. In 2007, his duties were further modified. On 14 March 2013, “L” was informed that there was no suitable work for him anymore.
A revised rehabilitation and return-to-work plan presented to Qantas recommended that the worker should work with a different employer.
Accordingly, Qantas notified “L” on 14 May 2013 that it was considering terminating his employment and required his responses to that proposal by 21 May 2013 as to why it shouldn’t exercise its right to bring his employment to an end based on medical grounds.
Challenging the Return-to-work plan
“L” was not satisfied with the return-to-work plan and wanted it modified, alleging it was unreasonable. Accordingly, on 17 May 2013, “L” filed a “notice of dispute” in the South Australian Workers’ Compensation Tribunal pursuant to s.90 of the Workers Rehabilitation and Compensation Act 1986 (SA).
On 27 November 2013, the Tribunal ruled in “L’s” favour, confirming that the plan was unreasonable.
Concurrent Unfair dismissal application
However, “L’s” employment was terminated based on medical grounds on 11 July 2013.
In anticipation of that action, he applied to the Fair Work Commission (“FWC”) on 26 June 2013 seeking an unfair dismissal remedy.
On 26 July 2013, “L” filed a second application in the FWC seeking an unfair dismissal remedy.
Qantas attempted to stop the second application with the FWC by using s.725 of the Fair Work Act 2009, which bars applicants commencing multiple actions.
The FWC determined that “L’s” “notice of dispute” of 17 May 2013 was not an “application for a remedy for dismissal”.
Qantas appealed this decision.
The FWC’s Full Bench decision
The matter before the Full Bench was:
… whether the making of an application by a person under a workers’ compensation statute for a remedy that does not involve reinstatement, re-employment or compensation in respect of a dismissal may nonetheless be an ‘application on complaint … in relation to the dismissal’ of the person … with the result that the person is barred from subsequently making an unfair dismissal remedy application.
The Full Bench determined that the original FWC decision was correct. “L’s” claim in his “notice of dispute” related to the reasonableness of the return-to-work plan. It did not amount to seeking a remedy for dismissal such as reinstatement, re-employment or compensation.
Accordingly, Qantas’ appeal failed.
Lesson for employers
The longstanding rule still applies. Litigants cannot commence multiple cases in different courts on the same issue in the hope that one may be successful. However, the question will always be: Are the issues being litigated the same?