The Queensland Anti-Discrimination Commission may accept a complaint by a sacked employee despite signing a valid deed of release

The Queensland Anti-Discrimination Tribunal recently rejected an interlocutory application by an employer to dismiss a complaint where the employee had signed a deed of release that included a clause releasing the employer from any future claims.

Facts of the case

The employee suffered a number of work related injuries and had been participating in a return to work plan. At a meeting with the employer the employee’s employment was terminated and she signed a deed of release presented to her by the senior human resources officer.

The deed released the employer from any claims being made against it in relation to the employment, terms of the employment, the proceedings and termination, except for claims for workers compensation. In return the employee was paid $9,711.43 and provided with a completed employment separation certificate, statement of service and an outplacement program.

Two months later, the employee made a complaint to the Queensland Anti-Discrimination Commissioner against the employer alleging discrimination on the basis of impairment. The Commissioner considered a provision of the Queensland anti-discrimination legislation which allows a complaint to be accepted even where parties had agreed not to make a complaint, where it is fair to do so.

The complaint was accepted by the Commissioner. Both parties then attempted conciliation but the complaint was not resolved.

The Anti-Discrimination Tribunal

The employer then lodged an Interlocutory Application to dismiss the complaint.

The Tribunal found that the Commissioner has the role of a gatekeeper and once a complaint has been accepted and referred it must be heard by the Tribunal. The Tribunal also found that the Commissioner has the power to over-ride the effect of agreements such as a deed of release, where parties have agreed not to make a complaint, where it is fair to do so.

The Interlocutory Application by the employer was dismissed.

Lessons for employers

A deed of release is not absolute. The Anti-Discrimination Commission may still accept a complaint made by an employee and the Tribunial may hear the complaint even where parties have signed a deed of release excluding a future claim under the Anti-Discrimination Act 1991 (Qld).

It is important for employers to obtain legal advice when contemplating a separation of employment by way of deed of release so as to reduce the risk of the employee making a future claim against their employer.