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No ‘double-dipping’ allowed ie FWC and then VCAT

In a recent decision of the Victorian Civil and Administrative Tribunal (VCAT), Maddocks successfully represented Boroondara City Council in a strike-out hearing that appears to be the first of its type at VCAT. The former employee’s application alleging unlawful discrimination under the Equal Opportunity Act 2010 (EO Act) was dismissed as misconceived because it was a claim ‘in relation to [his] dismissal’, and he had already had a claim heard in the Fair Work Commission ‘in relation to [his] dismissal’.

The former employee had claimed that he was discriminated against on the basis of his disability, contrary to the EO Act because Council did not provide him with reasonable adjustments by attending a proposed meeting with a medical practitioner for a work-related injury before dismissing him.

He was dismissed from Council in late 2016 after a lengthy absence and subsequently brought an unfair dismissal claim in the Commission. The employee was partially successful in his claim in April 2017 and was awarded compensation equivalent to six weeks’ salary.

Notwithstanding this, he subsequently filed an application under the EO Act at VCAT.

Council applied to VCAT seeking an order that the EO Act application be struck out under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). Section 75 provides that, at any time, VCAT may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion:

  1. is frivolous, vexatious, misconceived or lacking in substance; or
  2. is otherwise an abuse of process.

Council argued that VCAT did not have jurisdiction to hear the application on the basis that it was in substance the same as his prior unfair dismissal claim to the Commission and was therefore made in breach of s.725 of the Fair Work Act 2009 (FW Act). Under s.109 of the Australian Constitution, a Commonwealth Act will override a State Act to the extent of any inconsistency, which means that s.725 of the FW Act precludes VCAT from hearing the claim if it is in breach of the FW Act.

Section 725 of the FW Act prevents a person from ‘double-dipping’ in regards to litigation about dismissals, in that it prevents an employee from making a second application or complaint for the employee’s dismissal where he or she has already made an initial complaint regarding that dismissal.

A high threshold must be met before VCAT can exercise its power under s 75 of the VCAT Act to dismiss or strike out an application, and VCAT will only exercise this power with great care.

Despite this high threshold, Member Calabro determined that the former employee’s application was misconceived, therefore upholding the strike-out application. Member Calabro found that the issues raised by the former employee in his application to VCAT were precisely the same issues that were previously raised and canvassed in his application to the Commission. The former employee was therefore barred from attempting to re-litigate these issues before VCAT, when the effect of s 109 of the Constitution was taken into account.

While s.725 of the FW Act has been applied by the Commission in previous decisions, this appears to be the first decision of VCAT applying s.725 of the FW Act in conjunction with the Constitution, to deprive a State tribunal of jurisdiction.

This was so even though at first glance the two applications were different: one claiming unfair dismissal, the other unlawful discrimination.

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