I am not quite sure why James Ashby did not use this route to begin with. And it will be very ironic if he were to win the case, using Labor’s own laws.
The relevent chapter of the Act is Part 3-1, which deals with general protections. Under the act, employees have defined rights and are protected from adverse action in breach of those rights.
My guess is that Ashby’s counsel will be using the following section:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
But here is the real kicker. THERE IS A REVERSE ONUS OF PROOF in this part of the act. Slipper will have to PROVE that he did not discriminate against Ashby. Ashby does not have to prove that he was discriminated against because of one of the outlined reasons.
To be sure, Fair Work Australia can convene a conference between the parties – that will be fun – and can advise the parties that the application would not have a reasonable prospect of success.
In all likelihood, the matter will be dealt with by the Federal Magistrates Court.
Note that Ashby’s substantive allegation of discrimination has not be heard at this stage.
The games continue.