Cugura v Frankston City Council
[2011] FMCA 195
•25 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CUGURA v FRANKSTON CITY COUNCIL | [2011] FMCA 195 |
| INDUSTRIAL LAW – General protections court application – jurisdictional objection – applications and complaints under other laws – general rule – preventing multiple applications arising from single dismissal – whether complaint withdrawn. |
| Fair Work Act 2009 (Cth), ss.570, 725, 727, 728, 732 Workplace Relations Act 1996 (Cth), s.170HB Equal Opportunity Act 1995 (Vic) |
| Stannard v McIntyre & Ors (2004) 140 FLR 249 Deva v University of Western Sydney (2009) 191 IR 268 Asghani v SBS Radio [2001] VCAT 1755 Burrows v State of Victoria [2000] VCAT 407 |
| Applicant: | LUDWIG LEWIS CUGURA |
| Respondent: | FRANKSTON CITY COUNCIL |
| File Number: | MLG 1724 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 10 March 2011 |
| Date of Last Submission: | 10 March 2011 |
| Delivered at: | Melbourne via telephone link |
| Delivered on: | 25 March 2011 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr Langmead |
| Counsel for the Respondent: | Ms Bingham |
| Solicitors for the Respondent: | Macpherson & Kelley |
ORDERS
The application filed 13 December 2010 is dismissed.
Both parties shall file and serve any further submissions as to costs within 14 days and unless requested any application for costs be considered on the papers.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1724 of 2010
| LUDWIG LEWIS CUGURA |
Applicant
And
| FRANKSTON CITY COUNCIL |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 December 2010 Ludwig Cugura (“the applicant”) filed an application with the Court alleging his employment with Frankston City Council (“the respondent”) had been terminated in breach of the Fair Work Act 2009 (Cth) (“the Fair Work Act”).
The applicant is 45 years of age. The applicant commenced employment with the respondent on 24 March 2008 and his employment was terminated on 3 September 2010.
The application was accompanied by a certificate under s.369 of the Fair Work Act issued by Fair Work Australia certifying attempts to resolve the dispute between the parties had been unsuccessful.
In the Form 2 that accompanied the application it was alleged there had been breaches of ss.344 and 351 of the Fair Work Act.
The application was given a first court date of 28 January 2011. On that occasion the applicant appeared in person and the respondent had legal representation.
The following orders and directions were made at the first Court date:
“1.Pursuant to Rule 12.03 of the Federal Magistrates Court Rules 2001 the applicant be referred to the Registrar of the Federal Magistrates Court of Australia to be referred to a lawyer on the pro-bono panel, if any, for assistance in relation to the interlocutory application.
2.The Respondent file and serve any interlocutory application along with any evidence in support by 4 February 2011.
3.The Applicant file and serve a response to the interlocutory application along with any evidence in support by 11 February 2011.
4.The Respondent file and serve an outline of argument and copy of the any authorities by 18 February 2011.
5.The Applicant file and serve an outline of argument and copy of any authorities, if any, by 25 February 2011.
6.The matter be listed for an interlocutory hearing on 10 March 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 2.15 pm.”
Jurisdictional Hearing
Pursuant to the orders of 28 January 2011 the proceedings were listed for a jurisdictional hearing on 10 March 2011.
Ms Bingham of Counsel appeared for the respondent and indicated the respondent relied on the following material:
a)the affidavit of Ms Dawson sworn 3 February 2011; and
b)the written submissions filed 18 February 2011.
Mr Langmead of Counsel appeared for the applicant pro bono and indicated his client relied on:
a)his affidavit affirmed 7 February 2011; and
b)his outline of case filed in Court on 10 March 2010.
Jurisdictional objection
The orders sought by the respondent in the application in a case filed
7 February 2011 were:
“1.By reason of Section 725 of the Fair Work Act 2009 (Cth), the Applicant’s Application be dismissed; and
2.The Applicant pay the Respondent’s costs of the Application under Section 570(2)(b) of the Fair Work Act 2009 (Cth).”
The respondent filed in support of the above application an affidavit from Michelle Dawson, solicitor sworn on 3 February 2011 which relevantly for present purposes provided:
“3.The applicant’s employment was terminated by the respondent on 3 September 2010 for gross misconduct. Now produced and shown to me and marked “MJD-1” is a true copy of the notification of termination of employment provided by the respondent to the applicant on 3 September 2010.
4.On or about 14 September 2010, the applicant filed a Compliant with the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”) alleging that in terminating his employment, the respondent had discriminated against him on the basis of impairment, carer and parental status in the area of employment. The Complaint sought relief relating to the termination of the applicant’s employment with the respondent. Now produced and shown to me and marked “MJD-2” is a true of the letter to the respondent from VEOHRC dated 21 September 2010, annexing the applicant’s Compliant to VEOHRC (“the VEOHRC Compliant").
5.On 30 September 2010, the respondent provided VEOHRC with its response to the VEOHRC Complaint. Now produced and shown to me and marked “MJD-3” is a true and correct copy of the respondent’s response to the VEOHRC Complaint.
6.On 8 November 2010, the applicant filed an “Application for Fair Work Australia to Deal with a General Protections Dispute” in Fair Work Australia (“the FWA Application”). The FWA Application sought relief relating to the termination of the applicant’s employment with the respondent. Now produced and shown to me and marked “MJD-4” is a true copy of a facsimile sent by the applicant to the respondent on 8 November 2010, attaching a copy of the FWA Application.
7.On 9 November 2010, VEOHRC wrote to the respondent advising of its decision to close the VEOHRC Compliant pursuant to section 113(1) of the Equal Opportunity Act 1995 (“the EO Act”) (“the Section 113 Notice”) on the basis that the Commissioner did not consider it reasonably possible that the VEOHRC Compliant could be conciliated successfully. Now produced and shown to me and marked “MJD-5” is a true copy of the letter to the respondent from VEOHRC dated 9 November 2010.
8.Pursuant to section 113(2) of the EO Act the applicant had 60 days from the date of the receipt of the Section 113 Notice to require the Commissioner to refer the Compliant to the Victorian Civil and Administrative Tribunal (VCAT) (“the VEOHRC Referral Period”).
9.On 26 November 2010, the respondent filed an Employer Response to the FWA Application. Now produced and shown to me and marked “MJD-6” is a true copy of the Employer’s Response to the FWA Application dated 26 November 2010.
10.The FWA Application was conciliated by the Deputy President Hamilton of Fair Work Australia on 30 November 2010. The FWA Application was not resolved at conciliation.
11.On 30 November 2010, during the VEOHRC Referral Period, Depty President Hamilton of Fair Work Australia issued a Certificate under section 365 of the Fair Work Act 2009 (Cth), certifying that Fair Work Australia was satisfied that all reasonable attempts to resolve the FWA Application had been, or were likely to be, unsuccessful. Now produced and shown to me and marked “MJD-7” is a true copy of the Certificate issued by Fair Work Australia on 30 November 2010.
12.On 13 December 2010, during the VEOHRC Referral Period, the applicant commenced the proceedings the subject of this application, against the respondent by filing an Application to the Fair Work Division and a Claim under the Fair Work Act 2009 Alleging Dismissal in Contravention of a General Protection, both dated 13 December 2010 (“the FMC Application”).
13.I am informed by Jennie Bentley, Human Resources Coordinator for the respondent, that between 9 November 2010 and 13 January 2011, no notification was received by the respondent that the applicant had withdrawn the VEOHRC Compliant or that VEOHRC Compliant had failed for want of jurisdiction.
14.On 14 January 2011, VEOHRC issued a Notice of Dismissal of Compliant with respect to the VEOHRC Compliant. Now produced and shown to me and marked “MJD-8” is a true copy of VEOHRC’s Notice of Dismissal of Complaint dated 14 January 2011.
15.On 19 January 2011, following service of the FMC Application, the respondent field a Notice of Address for Service dated 19 January 2011.
16.On 21 January 2011, Macpherson & Kelley effected service of the Notice of Address for Service on the applicant. The letter from Macpherson & Kelley to the applicant which enclosed (by way of service) the Notice of Address for Service, raised with the applicant an issue as to the jurisdiction of this Honourable Court with regard to the FMC Application. It also invited the applicant to discontinue the FMC Application on the basis of the jurisdictional issues raised. Now produced and shown to me and marked “MJD-9” is a true copy of Macpherson & Kelley’s letter to the Applicant dated 21 January 2011.”
The applicant’s affidavit which he affirmed on 7 February 2011 so far as is relevant for the purposes of this application provided:
“2.My employment was terminated from the Frankston City Council on the 3 September 2010.
3.On the 28 August 2010, I submitted an online compliant with Ombudsman Victoria to seek an independent view of my perceived discrimination. At this time I was not terminated from Frankston City Council (LC1).
4.Approximately one week later and after a lengthy conversation with a representative from Ombudsman Victoria, I was directed to make contact with Victorian Equal Opportunity and Human Rights Commission (VEOHRC).
5.On the 10 September 2011 (sic), I submitted an online complaint with VEOHRC that now included the wrongful termination aspect of my grievances.
6. My contact with VEOHRC was Karin Wu, Investigator and Conciliator. Correspondent with her was often by phone.
7.During these verbal correspondence with Karin Wu, I made it clear that my paramount goal was to be reinstated to my employed position within the Frankston City Council.
8.As part of Karin Wu’s investigation, I received correspondence in the form of a letter dated 4 October 2010. The letter requested that I respond to a three questions and to phone her to discuss the matter further. (LC2)
9.On 15 October 2010 a phone conversation took place with Karin Wu (VEOHRC) whereby she informed me that Frankston City Council had made a negotiable financial resolution to my complaint. The sum stated was $7,000 but they would not be interested in any reinstatement or return to work. I explained that this was not satisfactory as my primary goal was reinstatement. (LC3)
10.This conversation with Karin Wu also included the authority and jurisdiction of VEOHRC and that they could not negotiate or seek some sort of compliance from Frankston City Council with my desire to be reinstated. However she did reiterate that the offer from Frankston City Council ($7,000 negotiable) was considered substantial, considering this early stage. She also stated that I could not bring a wrongful dismissal claim if I accepted this offer of resolution with VEOHRC.
11.After taking everything into consideration I informed Karin Wu during the conversation (15 October 2010), that I would not pursue my complaint via the VEOHRC after learning that VEOCHC (sic) has no jurisdiction on employment reinstatement. I informed Karin Wu to terminate the complaint with Frankston City Council at this time.
12.Karin Wu (VEOHRC) explained that by terminating my complaint I would not be allowed to resubmit it at a future date. Karin Wu suggested that I make contact with Fair Work Australia, which has a border jurisdiction and to seek legal representation.
13.On 15 October 2010, I contacted Fair Work Australia (FWA) regarding my situation. They immediately directly (sic me to their website and said that I need to initiate the process quickly as there were time restraints of making a claim/complaint with them. The FWA representative on hearing my complaint directed me to the F8 form on the website (Application for FWA to deal with a General Protections Dispute).
14.On 20 October 2010, I made a ‘Freedom of Information’ request via email with Frankston City Council with the hope they would see a flaw in their judgement, thus result in not having to venture the legal route. Unfortunately one of my simple requests; copy of my position description on date of employment, I was forwarded a copy of the wrong position description that was for a subordinate to my role. (LC4)
15.On 8 November 2010 after filing my FWA F8, I was contacted (via email) by Bronwyn Corless from FWA, that Frankston City Council had not received a copy of my application by did receive the Notice of Listing. (LC5)
16.Once this omission was highlighted by Bronwyn Corles (FWA) I immediately made available a copy to Frankston City Council.
17.The 30 November 2010 the hearing was held before Deputy President Hamilton (FWA) where once again Mick Eagles representing Frankston City Council was only prepared to negotiate a financial resolution to this dispute, and not reinstatement of my employment.
Attached to that affidavit was a photocopy of a handwritten note that provided:
“Friday 15 Oct 2010
Karin Wu – Investigator VEOHRC
1.Council has made an offer $7000 (negotiable) but no return to work – Karin surprised by amount
2.VEOHRC hasn’t power to seek return to work
3.Return to work is No.1 priority
4.Karin said – seek legal representation or speak to Fair Work Australia (FWA)
FWA has authority to request return to work claim prior to Court process.
5.Karin asked if I wanted to proceed with her end? No cease the process and reject the offer with return to work off the ‘table’
6.Karin will cease process and forward documentation via regular mail. EO terminated
Things to do ____ *Call FWA anytime very helpful
1.Contact FWA (look @ online info
2.FWA explained F8 form and process (general dismissal)
* Do it now
3.Make an appointment via Law Institute with Lawyers (30 min referral) Holding-Redlich”
Submissions
The respondent’s written submissions in support of the orders sought in the application in case were:
“5.In her affidavit of 3 February 2011 Michelle Dawson of Macpherson + Kelley provides a chronology of events associated with the applicant’s compliant under the Equal Opportunity Act 1995 (Vic) (the EO Act) and applications made under the FW Act.
6.There would appear to be no dispute on the affidavit evidence filed in these proceedings regarding the chronology of events as set out in Ms Dawson’s affidavit. It also appears to be conceded that the both the EO Act complaint and the FW Act proceedings pertain to the dismissal of the applicant from the respondent’s employ.
7.It is submitted that the complaint made by the applicant pursuant to the EO Act is a compliant which is within the application of section 732 of the FW Act.
8.It is submitted that the compliant made by the applicant pursuant to the EO Act has never been withdrawn by the applicant nor has it been dismissed for want of jurisdiction by the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC).
9.Pursuant to section 116 of the EO Act, evidence of anything said or done in the course of a conciliation is not admissible in any legal proceeding relating to the subject matter of the complaint. By reason of the operation of sections 26 and 27 of the FW Act, the EO Act is not excluded by the operation of the FW Act. It is submitted in determining whether the EO Act complaint was at the relevant time, withdrawn or dismissed for want of jurisdiction, the Court should have regard to objective evidence in the form of the correspondent from the VEOHRC to the parties (see exhibits MJD – 5 and MJD – 14). The conduct of the officers of the VEOHRC is inconsistent with the withdrawal of the complaint by the applicant or dismissal for want of jurisdiction.
10.It is submitted as such the EO Act compliant remained extant at the time when the applicant applied to Fair Work Australia (FWA) to have a general protections claim dealt with. It is submitted that FWA, in light of the extant EO Act compliant, did not have jurisdiction to entertain the application before it. The issuing of the certificate under section 369 was beyond power of FWA because of the operation and effect of sections 725 and 732 of the FW Act.
11. It is further submitted that:
(a)the applicant was not entitled to commence these court proceedings as the section 369 certificate was not an operative certificate and as such the requirement contained in section 371 has not been meet; further or alternatively.
(b)the EO Act compliant was extant at the time the applicant commenced proceedings in this Court. By reason of the operation and effect of sections 725, 728 and 732 the applicant was prohibited from commencing these proceedings.
12.It is submitted that on the grounds set out herein the applicant’s claim should be dismissed for want of jurisdiction.”
The applicant’s written submissions in relation to the jurisdictional objection were:
“1.The Complaint lodged by the Applicant with the VEOHRC was withdrawn on 15 October 2010 – see paragraph 11 of the Affidavit of Mr Cugura sworn 7 February 2011.
2.The conciliation was at an end when the Applicant terminated the process. The Court can properly admit this evidence.
3.A lay person should be given sufficient latitude if necessary to regard a “termination of the process” as a withdrawal within the meaning of the Fair Work Act, and should not be expected to enter into some greater formality of withdrawal.
4.The conduct of the Applicant since 15 October 2010 is entirely consistent with a withdrawal of the Complaint – he has not sought to pursue or in any way act upon it. Indeed his pursuit of the proceedings before Fair Work Australia and before this Court is objectively consistent with a withdrawal of the Complaint.
5.The purpose of the “double dipping” provisions is to prevent a respondent from being “twice vexed” as Madgwick J put it. It should not be used to enable a respondent to avoid being vexed entirely. In a real and practical sense the Applicant had withdrawn his Complaint, and the respondent was no longer vexed by it thereafter.”
Legislation
The relevant sections of the Fair Work Act in the circumstances of the orders sought by the respondent are:
“725 General Rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
…
727 General protections FWA applications
(1) This section applies if:
(a)a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2)A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.
728 General protections court applications
This section applies if:
(a)a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
…
732 Applications and complaints under other laws
(1) This section applies if:
(a)an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or compliant has not:
(i) been withdrawn by the person who made the application;
(ii) failed for want of jurisdiction.
(2)An application or compliant under another law in an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3)For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
Consideration
The applicant contends that the termination of his employment with the respondent in September 2010 was unlawful by reason of, breaches of various provisions of the Fair Work Act. The applicant seeks relief by way of reinstatement, compensation and penalty.
The argument advanced in support of the jurisdictional objection to that application by the respondent was:
a)the applicant had made a complaint to the Victorian Equal Opportunity and Human Rights Commission under the EO Act (“the complaint”);
b)the complaint included a claim regarding the termination of his employment; and
c)the complaint had not been withdrawn or failed for want of jurisdiction when the applicant made an application to Fair Work Australia; and
d)the complaint had not been withdrawn or failed for want of jurisdiction when the applicant filed this application with the Court; and
e)accordingly either at the time the applicant made the application to Fair Work Australia or alternatively when the applicant filed his application with the Court he had already made a complaint of the type mentioned in s.732 and as a result s.725 meant he could not make his application to the Court.
In submissions before the Court the respondent focused its submissions in support of the jurisdictional objection on the argument that at the time the applicant filed his application with the Court the complaint to VEOHRC had not been withdrawn or failed for want of jurisdiction. The respondent’s argument was as the applicant had already made a complaint of the type mentioned in s.732, the provisions of s.725 meant he could not file this application.
As the submissions made on behalf of the applicant make clear his response was the complaint had been withdrawn and therefore the jurisdictional objection could not be maintained.
The relevant legislative provisions referred to at paragraph 16 above are directed at preventing applicants from double dipping or making multiple applications arising from a single dismissal.
The purpose of the provisions as referred to in submissions was explained in the following terms in the Explanatory Memorandum provided during the Parliamentary process: (Explanatory Memorandum to the Fair Work Bill 2008)
“2707This subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708Clauses 726 to 732 set out all of the potential remedies that may apply. Causes 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
2709Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.
2710In all cases the anit-double dipping provisions will not apply where the initial application has:
· Been withdrawn; or
· Failed for want of jurisdiction.
2711This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.”[1]
[1] see respondents submissions
Both parties referred to the decisions in Stannard v McIntyre & Ors (2004) 14 FLR 249 (“Stannard”) and Deva v University of Western Sydney (2009) 191 IR 268 in submissions.
The decision in Stannard concerned a public servant who was dismissed for misconduct. He sought a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and that the application was dismissed. He then filed an application to s.170CE of the Workplace Relations Act 1996 (Cth). A Full Bench of the Australian Industrial Relations Commission found that s.170HB applied and the application could not be made.
A Full Court of the Federal Court quashed the Full Bench’s decision. Each member of the Court delivered a separate judgment. The majority had different reasons for holding that s.170HB(1) did not apply. Madgwick J did not adopt Finkelstein J’s reasons. The proceedings before this Court did not involve the ADJR Act, and therefore Madgwick J’s reasons have no application. In any event the provisions in the Fair Work Act are now different.
The only other authority referred to in submissions concerned amended provisions in the Workplace Relations Act 1996 (Cth) which were also in different terms to those now found in the Fair Work Act.
Given the controversy between the parties (came down to whether the complaint had been withdrawn) it was surprising there were no submissions made regarding the provisions of the Equal Opportunity Act 1995 (Vic) save for submissions before the Court by Counsel for the respondent which enumerated in seriatim the relevant provisions of that legislation.
The Court was told, and the parties submissions appeared to proceed on this basis that there was no express provision in the EO Act providing for the withdrawal of a complaint.
The meaning of withdrawn has been considered in a number of decisions.[2] However, in the absence of submissions on the matter, these decisions appear confined to the facts, in a different statutory context and of little utility in resolving the matter under consideration.
[2] see for eg. Chief Executive Officer of Customs v Au [2005] NSW CA 119 and Greta v Greta [2007] FamCA 1404
In written submissions the respondent, by reference to inter alia correspondence from VEOHRC, contended:
“8.It is submitted that the compliant made by the applicant pursuant to the EO Ac has never been withdrawn by the applicant nor has it been dismissed for want of jurisdiction by the Victorian Equal Opportunity and Human Rights Commission (the VEOHRC).
9.Pursuant to section 116 of the EO Act, evidence of anything said or done in the course of a conciliation is not admissible in any legal proceeding relating to the subject matter of the complaint. By reason of the operation of sections 26 and 27 of the FW Act, the EO Act is not excluded by the operation of the FW Act. It is submitted in determining whether the EO Act complaint was at the relevant time, withdrawn or dismissed for want of jurisdiction, the Court should have regard to objective evidence in the form of the correspondent from the VEOHRC to the parties (see exhibits MJD – 5 and MJD – 14). The conduct of the officers of the VEOHRC is inconsistent with the withdrawal of the complaint by the applicant or dismissal for want of jurisdiction.”
The applicant relied on a photocopy handwritten note that was annexed to the affidavit filed on 7 February 2011 to back up his contention the complaint had been withdrawn.
The respondent objected to the applicant relying on his affidavit to the extent it contained what was submitted was unverifiable hearsay. Prior to filing the affidavit with the photocopied handwritten note the applicant had not referred to the claimed conversation or that note in any of the other affidavits he had filed. In the face of the respondent’s objection the applicant did not seek an adjournment to give evidence.
Despite having the opportunity to do so the applicant produced no independent or written evidence from VEOHRC confirming he had withdrawn his complaint.
The applicant was unable to produce the original of the handwritten note, did not seek an adjournment to do so and did not provide any other documentation by way of correspondence from VEOHRC to corroborate his assertion that the complaint had been withdrawn.
The claim by the applicant that the complaint had been withdrawn when considered in the context of the EO Act raises questions as to why VEOHRC would send correspondence indicating it remained on foot.
As defined in the Macquarie Dictionary[3] the meaning of “withdrawn” is: (1) past participle of withdrawn; (2) shy, retiring or modest; (3) secluded, as a place and “withdraw” (1) to draw back or away, take back, remove; (2) to retract or recall; (3) to retire, retreat, go apart or away; (4) to retract a statement or expression; (5) Parl. Proc. to remove an amendment, motion etc from consideration. The Concise Oxford Dictionary reprinted 1990, 1991 at p 1408 defines “withdraw” past part. “withdrawn” as (1) pull or take aside or back; (2) discontinue, cancel, retract; (3) remove, take away; (4) take (money) out of an account; (5) retire or go away, move away or back (6) (as withdrawn adj.) abnormally shy and unsociable, mentally detached.
[3] The Macquarie Dictionary 2nd revised ed reprinted 1988, 1989, 2nd revision 1987 p 1959
The EO Act provided that if a person believed that they have been discriminated against they could make a complaint in writing to VEOHRC. The complaint had to be written and VEOHRC was required to assist a complainant to prepare their statement of complaint.
The complaint was formally lodged if it appeared to meet the criteria under the EO Act and lodgement triggered the commencement of the statutory complaint handling period.
Under the EO Act VEOHRC was required to notify the respondent in writing as soon as practicable after receiving it. Complaints were initially investigated and considered for referral to conciliation or declined for one of the reasons listed in the EO Act. A complainant could require VEOHRC to refer the complaint to the Victorian Civil and Administrative Tribunal (“VCAT”).
As noted earlier the parties submissions appeared to accept there was no provision for a withdrawal in the EO Act. In this context, and whilst the Court was not referred to the decision in submissions, it is noted that in Asghani v SBS Radio [2001] VCAT 1755, VCAT was dealing with an application for costs on withdrawal of a complaint made under the EO Act that had been referred to VCAT. It was said:[4]
“[5]It is also relevant to take into the account the nature of the proceeding. This is a complaint under the Equal Opportunity Act. That legislation has a social rather than a commercial objective. Its objectives include to eliminate discrimination as far as possible, and for provide redress to its victims. The scheme of the Act involves the establishment of a simple system of complaint, which is accessible to people whether legally represented or not. One of the focuses of the Act is conciliation. It is consistent with this scheme and this focus that, as far as complaints are concerned, the requirements that must be met before a complaint before VCAT can be withdrawn are simpler than those for other proceedings. The leave of the Tribunal is not required before a complaint can be withdrawn.”
[4] See also Fernandez v Amatek Pty Ltd [2001] VCAT 1979
There is also the decision in Burrows v State of Victoria [2000] VCAT 407 where VCAT was dealing with an application to treat as a ‘live complaint’ a matter that had been withdrawn during a compulsory conference before VCAT. In the course of its decision VCAT said:
“When then is a complaint withdrawn? Section 74 does not state that the withdrawal itself must be in writing, although it states that notification of the withdrawal to the parties must be in writing. In my view taking this provision into account and the fact that a complaint under the EqualOpportunity Act may be withdrawn without the Tribunal's leave and also that a complaint under the Equal Opportunity Act is required to be in writing, it is my view that parliament intended in s.74 in relation to proceedings under the Equal Opportunity Act that the withdrawal of a complaint must also be in writing. No form of withdrawal is provided for, however, the document withdrawing a complaint must in my view clearly indicate what is being withdrawn and that withdraw is what the document intends to do.” (emphasis added)
Consistent with the provisions of Part VII of the EO Act the complaint was initiated by the applicant to VEOHRC. At the relevant time, and subject to inter alia the complaint, not being declined for purposes of s.108, resolved at conciliation or withdrawn VEOHRC was required to comply with any notice from applicant including referring it to VCAT.
There was no evidence of a written withdrawal of the complaint. There is before the Court written documentation from VEOHRC which indicates that, at all relevant times for the purposes of this application, notice was given by VEOHRC to the respondent that it regarded the applicant’s complaint as still on foot such that it was in the statutory referral period and could be referred to VCAT.
There was no explanation, given the assertion made by the applicant with reference to the handwritten note and the claim made at the jurisdictional hearing the complaint had been withdrawn, as to why VEOHRC would send the two documents annexed to the affidavit at paragraph 11 which were not disputed. I also note the respondent’s submissions the material filed by the respondent is not entirely consistent with the claim now made that the complaint had been withdrawn[5] and he can apply again to Fair Work Australia.[6]
[5] see paragraph 11 of affidavit
[6] see s.366 Fair Work Act 2009
Given all of the matters referred to above and in absence of any other material from VEOHRC, on what is before me, I am not satisfied the complaint had been withdrawn before this application was filed.
Conclusion
Accordingly and, as it was not otherwise contended that the complaint wasn’t an application to which s.732 applies, by virtue of the operation of s.725 the applicant is unable to make the current application.
Given the provisions of s.570 of the Fair Work Act if the parties are unable to agree on appropriate orders as to costs then they have liberty to make any further submissions in writing on that question provided those submissions are filed within 14 days and do not exceed two pages in length. In that event the question of costs will be determined on the papers unless the parties request otherwise.
However for the reasons set out above there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 25 March 2011
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