Multiple dismissal claims not permitted

The Fair Work Act forbids multiple legal proceedings about a dismissal.

“The effect of sections 725 and 732 of the Fair Work Act 2009 in this case is that if the VCAT proceedings are “in relation to the dismissal” and have not been withdrawn or failed for want of jurisdiction, Ms Amarant is prohibited from then making an unfair dismissal application. The statutory purpose of the prohibition is to limit Ms Amarant to a single remedy in relation to her dismissal. Of the two applications, there is no dispute that the VCAT application was made first. The question is whether the VCAT application is in relation to the dismissal………….

n Birch v Wesco Electrics (1966) Pty Ltd 1, Federal Magistrate Lucev considered the phrase “in relation to” and held that what was required was a relationship that did not need to be exclusive or predominant, but could not be one that was tenuous or remote. That is, it “must lie within the bounds of relevance to the statutory purpose”2.

It is plain in this case that there is a relationship between the VCAT application and the one before me. The relationship is neither tenuous nor remote. Each covers the same ground and relies on the same factual matrix, with its origin in incidents of alleged bullying in 2016 that have not been resolved for Ms Amarant.

I do not accept that the alleged discrimination and unfair dismissal are “two separate issues” 3 having regard to the history of the matter as a whole. The timing of the VCAT application coincides with Ms Amarant’s receipt of advice from South West Healthcare on 13 June 2019 to the effect that the employment relationship was likely to end. In forwarding on information on the progression of events shortly thereafter, Ms Amarant specifically asked the Human Rights Division “Is there anything I can do to stop this process?” in relation to her impending dismissal. She did not provide VCAT with information about the dismissal for information only. It was in furtherance of the VCAT proceedings.

In those proceedings and in these, the outcome sought by Ms Amarant is financial compensation. It is a remedy that is available both in connection with unfair dismissal and in the case of discrimination on the basis of a relevant attribute under the Equal Opportunity Act 2010. 4 One such attribute is employment activity and it is at least arguable that VCAT has jurisdiction to deal with the dispute. In any event, the VCAT proceedings have not been withdrawn and have not been dismissed on jurisdictional grounds.

The VCAT proceeding is a matter “in relation to” Ms Amarant’s dismissal and an application of a kind referred to in s.725 of the Act. The result is that Ms Amarant cannot bring this application unless and until that matter is withdrawn or fails for want of jurisdiction.

The jurisdictional objection is upheld and Ms Amarant’s unfair dismissal application under s.394 of the Act is dismissed.”

Amarant v South West Healthcare (2019) FWC 8143 delivered 29 November 2019 per- McKinnon C