In Diggles v Heery and Australian Laboratory Services an employee was permitted to make a discrimination complaint after she had signed a Deed of Release arising from her termination of employment in relation to all future claims.
The employee had entered into a Deed of Release with the employer, receiving a settlement sum and releasing the employer from all claims in relation to her employment except workers compensation. One of the terms was the employer could plead the Deed as a bar to any such claim.
The employee lodged a discrimination complaint in the Queensland Anti-Discrimination Commission after she was terminated alleging discrimination on the basis of impairment. The employee had suffered numerous injuries at work, and prior to her termination date was stood down from work on full pay until medical clearance was provided. A meeting was held between the employer and the employee and the employee signed the Deed. The discrimination claim was made on the basis legislation provided an employee who had agreed not to make a complaint to make one if it is fair to do so.
The employer argued the complaint should be dismissed as the Deed acted as a bar to proceedings. The Tribunal found that Parliament had anticipated the need for agreements made between employers and employees not to complain to be considered, and a Commissioner has the power to override the common law effect of the agreement for the purposes of the Act. Any substance to the complaint is required to be dealt with by conciliation or by hearing if necessary. The application by the employer was dismissed.
This is an interesting case. Deeds releasing employers from future claims are commonplace to find a solution for the employee and the business. The case opens the way for an employee to effectively sidestep agreements entered into at the termination of employment. Such agreements or deeds require careful drafting to evidence each parties express intention to defeat such an argument.