Kelly v Commonwealth of Australia as represented by Services Australia (formerly the Department of Human Services)
Citation: [2023] FCA 69
At a glance
- Employees affected
- 1
What happened
Brendan Kelly, a former Commonwealth employee, claimed discrimination based on sexual orientation and disability (ADHD and mental health conditions) by co-workers and supervisors at Centrelink service centres. He alleged contraventions of sex discrimination, disability discrimination, and Fair Work Act provisions. He sought declarations, damages exceeding $4 million, and civil penalties, relying partly on conduct by a university student on placement.
What was decided
The court dismissed an interlocutory application to strike out parts of the claim. The court found that some claims, particularly those involving the student's alleged conduct and damages claims, should be struck out or stayed pending AHRC complaint processes. However, the court allowed the proceedings to continue in relation to remaining claims involving identified employee respondents.
What it means for employers
Employers are responsible for discrimination by their own employees acting in their capacity as employees. Discrimination complaints are subject to statutory procedural requirements and may be constrained by AHRC jurisdictional rules. Employers should have clear discrimination complaint mechanisms.
What it means for employees
Employees who experience discrimination should use internal complaint processes and may lodge AHRC complaints. Court remedies may be limited by prior AHRC involvement and the statutory framework. Discrimination claims require identified causation between protected attributes and adverse action.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0069Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →