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The Australian National University

Re-Thinking the Fair Work Protection Against Discriminatory Dismissal

Joellen Riley (2013) 41 (1)

People who lose their jobs as a consequence of discriminatory treatment at work face an array of options for redress. They might bring proceedings for unfair dismissal before a statutory tribunal (the Fair Work Commission), or they may pursue a claim in the Federal Court of Australia. This article contemplates the possibility that the system for dealing with discriminatory dismissal could be rationalized so that aggrieved employees might have a single, accessible pathway through an administrative process to deal with such complaints. This would involve rethinking whether discrimination complaints ought to be treated as a matter of vindicating legal rights, or as a matter of arbitrating competing interests. Abandoning the language of rights may facilitate a pathway around the Boilermakers' doctrine (which mandates that only Chapter III courts can determine legal rights), and so enable the establishment of a more accessible and effective avenue for dealing with discrimination at work.

Vol 41, Issue 1, 2013

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