Wanninayake v State of Queensland

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In a recent decision on 15 May 2017, the Fair Work Commission (FWC) has dismissed an application for unlawful dismissal brought by a former State Government employee who had previously been unsuccessful in an unfair dismissal claim in the Queensland Industrial Relations Commission.

Amongst other things, Deputy President Gooley determined that the employee’s prospects of succeeding at a final hearing faced a significant hurdle, namely s 725 and s 732 of the Fair Work Act 2009 (Cth), which prohibit multiple applications ‘in relation to the dismissal’. In both matters (QIRC and FWC) the employee had claimed that the Department dismissed her. The decision is important in ensuring that State public servants who are unsuccessful in unfair dismissal proceedings in the QIRC are not able to then bring proceedings regarding their dismissal before the FWC.

Submissions were also made before the FWC that the employee’s application was bound to fail because Part 6-4 of the FW Act does not apply to the State of Queensland because of the implied limitation on Commonwealth legislative power with respect to State system employees (notably the Melbourne Corporation principle). In her decision of 15 May 2017, Deputy President Gooley noted that it was not appropriate for her to reach a conclusion on this point at this time.

An appeal has been lodged in relation to the decision to the Full Bench of the FWC.