s.365 - General protections

The Commonwealth of Australia as represented by the Parliamentary Workplace Support Service

Application to deal with alleged contravention of the general protection provisions involving dismissal - multiple applications - applicant also made an application to Australian Human Rights Commission - application "in relation to" a dismissal - general protections application made after AHRC application - second application prohibited by s.725 - second application not made in accordance with the FW Act - s.587(1)(a) - application dismissed.

• [1] Mr Daniel Moon worked as Community Engagement and Parliamentary Officer for a Commonwealth Member of Parliament. Mr Moon was employed from 8 January 2024 until he was dismissed on 20 June 2025. In this position he was employee of the Commonwealth of Australia (as represented by the Parliamentary Workplace Support Service) under the Members of Parliament (Staff) Act 1984 (Cth). Mr Moon had a workplace injury and claims that he was dismissed in contravention of the General Protection provisions of the Fair Work Act 2009 (Cth).

• [2] Mr Moon also claims that the Commonwealth of Australia (as represented by the Parliamentary Workplace Support Service), referred to in this decision as the Commonwealth, unlawfully discriminated against him in contravention of the Disability Discrimination Act 1992 (Cth) in the course of his employment and, perhaps, in his dismissal.

• [3] Mr Moon's position was made redundant after the MP for whom he worked was re-elected the May 2025 federal election. The electoral office was re-organised and Mr Moon's position was replaced with a position for a more senior advisor.

• [4] In the last days of his employment Mr Moon threatened to lodge formal complaints "across every available avenue" against the Member of Parliament and their office staff personally, "including the Independent Parliamentary Standards Commission (IPSC), the Australian Human Rights Commission (AHRC), the Fair Work Commission (FWC), the internal [Party] processes, and, if necessary, through the courts."

• [5] Mr Moon has made good on at least two of these threats - which took him on a collision course with s.725 of the Fair Work Act 2009 (FW Act). Mr Moon made an application to both the AHRC and the Commission.

• [6] Section 725 is designed to prevent multiple proceedings in relation to the same dismissal so that applicants are limited to one remedy. Section 725 is a personal prohibition against lodging a second application if the first application is still on foot. Mr Moon's first application was to the AHRC and his application under s.365 of the FW Act is his second application.

• [7] I must determine whether the Commission is properly seized with jurisdiction to deal with Mr Moon's general protections application, which means that I must determine whether s.725 prevented Mr Moon from making his second claim against the Commonwealth.

• [8] The only real matter of controversy in this matter is whether the AHRC application was "in relation to" Mr Moon's dismissal. For the following reasons I am satisfied that the AHRC application was in relation to the dismissal and therefore that Mr Moon's general protections application was not properly made in accordance with the FW Act.

• [9] The Fair Work Commission can deal with applications under s.365 of the FW Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute (Ward v St Catherine's School [2016] FCA 790 at [3]).

• [10] The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152 at [51], [2020] FCAFC 152; (2020) 300 IR 146 found that the FWC's power to deal with a dispute under s.368 is only enlivened if an application is properly made under s.365. When a jurisdictional objection is raised the FWC must determine whether the application was properly made, which might include determining whether an applicant was actually dismissed from their employment.

"A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies."

• [12] Section 725 prohibits the making of multiple applications in relation to the same dismissal. In particular, a second or third application must not be made unless all earlier applications have concluded.

• [13] Section 587 allows the Commission to dismiss an application in the early stages - subject to affording procedural fairness and also subject to any limitations in s.587(2) relating to applications under s.365. If Mr Moon's second application was not made in accordance with the FW Act it can be dismissed under s.587(1)(a). Section 587 of the FW Act is in the following terms:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [14] The Full Bench in Dixon v United Workers' Union [2024] FWCFB 442 at [20]- [22], (2024) 337 IR 1 at 7-8 provided a helpful summary of how the Courts and Commission have applied the phrase "in relation to" in s.725:

"The phrase "in relation to" is a well-known relational term of generally wide import, the nature and breadth of which depends on the statutory context and purpose. In Birch v Wesco Electrics (1966) Pty Ltd (Birch), Lucev FM considered that phrase within the context of ss 725 - 733 of the Act and concluded that the phrase does "not extend to tenuous or remote relationships".

A Full Bench of the Commission cited Birch with approval in Qantas Airways Ltd v Lawless:

"It is evident therefore that the provisions of Subdivision B of Division 3 of Part 6-1 have the purpose of restricting a person with multiple remedies in relation to the person's dismissal from applying for more than one available remedy. In this respect, we agree with the statement of Lucev FM in Birch that 'The statutory purpose, put simply, is to limit an applicant to a single remedy"

In Hazledine v Wakerley a differently constituted Full Bench upheld a decision of a member who considered whether there was a relationship, other than a "tenuous or remote relationship", for the purposes of s 726 of the Act (which is relevantly in the same terms as s 727). Consistently, that test was applied by Driver J in Dias v Commonwealth Bank Group where his Honour stated:

"The use of the phrase 'in relation to' in s 725 of the Fair Work Act does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship. The relationship must be a 'relevant relationship' read in the context of the provision and bearing in mind the statutory purpose of the provision."

• [15] Further principles can be drawn from the authorities[1]:

(a) s.725 is concerned with the state of affairs when the second application is made, and contemplates a situation where a person has been dismissed and proposes to make a second application of particular kinds;

(b) s.725 imposes a personal prohibition on a person making a second application;

(c) the second application is not saved by a subsequent withdrawal of the first application because s.725 is not concerned with what happens after a prohibited second application is lodged;

(d) an application may relate to a dismissal without necessarily seeking a remedy for the dismissal itself;

(e) for the application to have been "made", it is not necessary for it to have been validly made in the sense that jurisdictional or procedural requirements are met; and

(f) the word "withdrawn" in ss.726-732 inherently involves doing something active by way of withdrawal.

• [16] The chronology of relevant events was not contentious.

(a) on 8 January 2024 Mr Moon commenced employment and in February 2025 Mr Moon sustained a workplace psychosocial injury;

(b) on 27 May 2025, after the election, Mr Moon was told that there was to be a restructure of the office and that his role was redundant. Between 27 May 2025 and 6 June 2025 emails were exchanged about the restructure;

(c) on 6 June 2025 a return to work plan was finalised;

(d) on 13 June 2025 Mr Moon received a "Proposed Termination Letter" that invited Mr Moon to respond by 20 June 2025;

(e) later that day, at 2:59pm, Mr Moon made an application to the AHRC;

(f) at 4:14pm Mr Moon provided his first response to the Proposed Termination Letter, threatening to "lodge formal complaints ... across every available avenue" (see below) if the dismissal proceeded;

(g) on 16 June 2025 Mr Moon provided a second response to the Proposed Termination Letter, repeating the same threats;

(h) on 20 June 2025 Mr Moon's employment was terminated, effective the same day; and

(i) on 24 June 2025 Mr Moon filed a General Protections application.

• [17] The Commonwealth's consultation process for the proposed redundancy and dismissal were orthodox. However Mr Moon's responses during the consultation process were somewhat testy. The final two consultation responses sent by Mr Moon to the Member's Chief of Staff were sent after Mr Moon filed his AHRC application, and included the following threat to lodge formal complaints "across every available avenue" if he was dismissed. The second last response was as follows, and the final response repeated the same threat in a shortened form:

"Subject: RE: Follow up meeting on Office Restructure

My position remains unchanged. What you are proposing is not lawful.

If you proceed with these unlawful actions, I will have no alternative but to lodge formal complaints against [the MP], yourself as her representative, and [Name] as the office manager, across every available avenue - including the Independent Parliamentary Standards Commission (IPSC), the Australian Human Rights Commission (AHRC), the Fair Work Commission (FWC), the internal Labor Party processes, and, if necessary, through the courts.

I again request that you cease this discriminatory and bullying behaviour, stop misrepresenting the situation, and honour the workplace's commitment to my gradual return to duties consistent with my position description (or mutually agreed alternatives), as supported by medical advice and consistent with the agreed return-to-work arrangements.

This will be my final feedback on the unlawful and discriminatory proposal.

• [18] In the hearing Mr Moon took issue with the email above being labelled as a "threat". In my view the words "If you proceed with these unlawful actions, I will" sent to an MP's chief of staff are quite obviously a threat.

• [19] Mr Moon's covering email to the AHRC when lodging his claim includes the following:

"Please see attached a Workplace Employment complaint regarding disability discrimination and workplace bullying and termination of employment due to disability discrimination

• [20] In answer to the question "When did the alleged event(s) happen?" Mr Moon wrote:

"Starting in November 2024 I felt excluded and core parts of my job role were being reassigned without mutual agreement. On May 3rd I was told I would be returned to my job role on 27 May 2025 I was told my role would be eliminated."

• [21] Mr Moon's AHRC claim includes the following:

"I believe that this failure to accommodate has directly contributed to adverse employment consequences, including being overlooked for a promotion to Electorate Officer C level, potential unfair dismissal (or constructive dismissal as duties associated with my role) related to a office restructure, that was suspiciously timed, which I allege amounts to unlawful discrimination under the Disability Discrimination Act 1992 (Cth)."

• [22] In his General Protections application Mr Moon said the following in answer to the question "Has the Applicant started any other claims?":

Human rights commission, although they are mainly looking at if I was discriminated against over the course of my employment, there scope is wider. I would prefer to deal with the dismissal element of the discrimination via the FWC and let the AHRC handle the workplace discrimination in relation to the way my workplace injury was handled."

• [23] In citing the alleged reasons for the dismissal in his General Protections application (Question 2.2) Mr Moon referred to matters beyond the dismissal, including:

"In February 2025 I sustained a workplace injury (Work related stress, medically diagnosed by my GP) I was placed on mandatory miscellaneous leave to manage this condition and provided medical certificates to support a return-to work plan with recommended adjustments.

Upon returning to work, I was:

• Prevented from performing core duties I had previously carried out successfully (e.g. campaign and volunteer coordination).

• Excluded from meaningful work in the final weeks of a federal election campaign.

• Subjected to a office restructure where my role was abolished ....

... I believe I was treated less favourably and ultimately dismissed because of my mental health condition and/or the employer's reluctance to accommodate my needs ..."

• [24] Mr Moon's submissions included the following key propositions:

The AHRC complaint was lodged on 13 June 2025, prior to the termination of my employment on 20 June 2025. At that time, I was still employed, had not received a final notice of termination, and was actively engaging with my employer in the return-to-work process, following a workplace injury.

The substance of my AHRC complaint focused on the employer's failure to implement reasonable adjustments and to follow the medically supported return-to-work plan. The complaint addressed issues such as exclusion from meaningful duties, exclusion from the team, lack of support, and concerns about compliance with disability discrimination laws in the management of my return from injury.

My dismissal occurred after the AHRC complaint was lodged. It was a new and separate act, formalised on 20 June 2025. The dismissal was not the subject of the AHRC complaint, because the dismissal had not yet occurred. The application to the Fair Work Commission under s.365 seeks to address what I allege was adverse action taken in response to my attempts to assert workplace rights and request reasonable accommodations.

... my AHRC complaint did not seek to address a dismissal that had already occurred. In fact, my dismissal was not yet finalised...

I submit that the Commission retains jurisdiction to hear my application under s.365 of the FW Act. The AHRC complaint concerned pre-dismissal treatment in relation to disability and return-to-work obligations. The dismissal that followed was a separate and subsequent act of alleged adverse action."

• [25] Mr Moon's subjective intention in making the AHRC complaint is not relevant. The connection between the AHRC application and the dismissal is to be assessed objectively in all the circumstances.

• [26] The key circumstances in this matter are:

(a) the AHRC application was made on the same day Mr Moon was given the proposed termination letter;

(b) the proposed termination letter was included as an attachment to the AHRC application;

(c) one hour after making the AHRC application Mr Moon went nuclear and made threats to "lodge formal complaints ... across every available avenue." Mr Moon included the complaint to the AHRC as one of several avenues he would pursue to challenge what he described in his email as an "unlawful dismissal";

(d) the cover email to the AHRC described the complaint as being about "termination of employment due to disability discrimination" amongst other things;

(e) the complaint to the AHRC allege that the decision to make Mr Moon's role redundant on 27 May 2025 contravened the Disability Discrimination Act 1992; and

(f) the application to the AHRC claims that the "potential unfair dismissal" amounts to unlawful discrimination under the Disability Discrimination Act 1992.

• [27] In my view it is inescapable that the application to the AHRC was 'in relation to' the dismissal.

• [28] The purpose of s.725 is to prevent situations exactly like the present. Mr Moon's shock and awe style approach to litigation, under which he launched complaints across almost "every available avenue", is to be discouraged.

• [29] There are clear connections between the complaints in the AHRC application and the dismissal, and very clear duplication or overlap between the matters relied upon by Mr Moon in each application. Having chosen to commence the AHRC preceding first, Mr Moon was prohibited by s.725 from making his application under s.365.

• [30] As such, Mr Moon's application was not made in accordance with the FW Act.

• [31] Section 587(1)(a) confers a discretion on the Commission to dismiss the Applicant's application if it has not been made in accordance with the Act. The qualifications in s.587(2) do not restrain the discretion available under s.587(1)(a).

1. The application under s.365 of the Fair Work Act 2009 (Cth) made by the Applicant on 24 June 2025 is dismissed.

[1] See Dr Bing Du v University of Ballarat [2011] FWAFB 5225, (2011) 211 IR 382; Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5, (2012) 218 IR 67; Lawless v Qantas Airways Ltd [2014] FWC 744; Qantas Airways Ltd v Lawless [2014] FWCFB 3582; Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660; Hazledine v Wakerley [2017] FWCFB 500, (2017) 266 IR 118; Dias v Commonwealth Bank Group [2021] FCCA 601; Minhas v United Workers Union [2024] FWC 805 and Dixon v United Workers' Union [2024] FWCFB 442, (2024) 337 IR 1.

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