Ms Leonie Amarant v South West Healthcare

[2019] FWC 8143

[2019] FWC 8143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.725 - multiple actions relating to dismissal

Ms Leonie Amarant
v
South West Healthcare
(U2019/7633)

COMMISSIONER MCKINNON MELBOURNE, 29 NOVEMBER 2019

Unfair dismissal – jurisdictional objection – multiple applications – application or complaint under equal opportunity law – objection upheld - application dismissed.

[1] This decision is about whether Leonie Amarant can apply for an unfair dismissal remedy against South West Healthcare while she is bringing separate but similar proceedings in the Victorian Civil and Administrative Tribunal.

[2] Ms Amarant was employed by South West Healthcare from 20 April 2004 until 27 June 2019. In 2016, allegations of workplace bullying were made both by and against her. Ms Amarant has been in dispute with South West Healthcare about the handling of the bullying allegations since that time, including in relation to whether her allegations were dealt with at all. She last worked for the organisation on or about 12 January 2017.

[3] The effect of sections 725 and 732 of the Fair Work Act 2009 in this caseis that if the VCAT proceedings are “in relation to the dismissal” and have not been withdrawn or failed for want of jurisdiction, Ms Amarant is prohibited from then making an unfair dismissal application.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.

The VCAT proceedings

[4] The VCAT proceedings were filed on 18 June 2019. It is possible they were in contemplation earlier than that day because images of the application form include a date of 3 June 2019 at the top of each page, but the form was not signed until 13 June 2019 and it was filed by email to VCAT’s Human Rights Division on 18 June 2019.

[5] The application seeks orders under the Equal Opportunity Act 2010 against ten employees or former employees of South West Healthcare, including Craig Fraser, former Chief Executive Officer as well as a representative of the Australian Nursing and Midwifery Federation, Mr Mathew Watson. The reason for the application was alleged discrimination and bullying or involvement in the bullying of Ms Amarant. Details of the alleged incidents over the period from April 2015 to October 2016 and related subsequent events were attached to the application.

[6] Filed with the application was a document titled “Reasons for Application”, which recounts in detail Ms Amarant’s allegations “about the bullying I’ve suffered at South West Healthcare since 2016” that “has largely fallen on deaf ears.” It outlines attempts by the parties to arrange a return to work and subsequent processes involving the Commission, Work Safe, the Victorian Equal Opportunities and Human Rights Commission. Relevantly, it states:

“…The reason for this application is my last-ditch attempt to gain justice from SWH.

…They have caused me significant emotional and financial hardship and now I’m physically ill, requiring medications and expensive tests. I can no longer afford my home loan.

…What is my application about?

The failure of SWH to respond to my Riskmans submitted on 30/7/16 and 1/9/16 regarding being bullied in Merindah Lodge, and the failure of SWH to address my Riskmans according to SWHs Bullying and Harassment Policy, the Code of Conduct Policy, the Medication Management Policy, Breach of Privacy, Confidentiality Policy, Informaiton Management and SWH Core Values of Care, Respect, Integrity and Excellence. …”

[7] The following documents were also attached to the VCAT application:

1. Email from Natasha Swayn to Ms Amarant dated 8 August 2016

2. Cover page of ANMF Workplace bullying: A guide to assist members

3. Memo from Lynda Hubbard to All Nursing Staff dated 1 August 2016

4. Extract of meeting minutes, 15 March 2017

5. Email from Craig Fraser to Ms Amarant dated 13 March 2019

6. Letter from South West Healthcare to Ms Amarant of 13 June 2019.

[8] The final document on that list – a letter dated 13 June 2019 - was sent to Ms Amarant on the day her VCAT application was signed. The letter raised concerns with Ms Amarant about her conduct and behaviour, noting that she had secured alternative employment. It sought to confirm the status of her employment, expressing a preliminary view that it was appropriate to “finalise the status” of Ms Amarant’s employment by paying out her accrued entitlements on 5 July 2019 and seeking a response by 28 June 2019.

[9] On 20 June 2019, South West Healthcare wrote to Ms Amarant asserting her repudiation of the employment relationship and proposing to accept the repudiation by terminating the employment on 5 July 2019. Shortly after it was received, Ms Amarant sent a copy of the letter to VCAT under cover of an email stating as follows:

“Dear Human Rights,

This is the second intimidating email I’ve received from Leani in a week. They are trying to force me to resign and have my Entitlements paid out in a lump sum when I specifically requested fortnightly payments. I’m not ready to resign yet either. Is there anything I can do to stop this process?

The email is attached. My VCAT ID Number is 15027369.

Sincerely, Leonie Amarant.”

[10] On the evening of 26 June 2019, after further correspondence between the parties, South West Healthcare sent an email to Ms Amarant confirming the termination of her employment. The letter was received by Ms Amarant on the morning of 27 June 2019. She sent it on to the Tribunal, with the following note:

“Dear Human Rights,

I received this email this morning, confirming my termination of employment. Please see attached.

Sincerely,
Leonie Amarant.”

These proceedings

[11] Ms Amarant filed this application on 11 July 2019. It seeks the following outcome:

“A palatable payout as I have been actively fighting being bullied at the workplace since 2016 and they have ignored me, treated me unfairly and opposed to their Bullying and Harassment Policy. They have provided me with only ONE return to work plan which threw me back onto day duty which I haven’t worked for 30 years so that I would be amongst those bullying me for 8 hour shifts. That was in December 2016. So I have now been terminated on the grounds of repudiation for not returning to the workplace. I have tried to return to work through the Fair Work Commission which took about 9 months and cost me $13,000 and my case was thrown out eventually on the grounds that SWH was a “no constitutional business . Safe Work said I was brave to come forward but their job was to ensure that businesses have policies in place to deal with bullying, it didn’t however extend to ensuring that it was actually applied to staff. That took about 9 months. I finally had Conciliation in June 2019 (the one in January 2017 was cancelled because SWH weren’t in a position to offer me anything they weren’t prepared to offer me a RTW plan or a palatable payout in June. My bank has now said to me to lawyer up and pay up or I will lose my house.”

[12] In answer to the question “Why was the dismissal unfair?”, it states as follows:

“Individuals should be able to have their complaints about being bullied heard in a Fair and timely manner and be kept informed and every effort be made to return them to their workplace safely. In 2016 all I wanted was to be able to go back to work in a safe environment and for the staff to leave me alone. Now I know it will NEVER be safe for me so, so I want my lost wage to be compensated, my legal fees reimbursed so that my son and I will not be destitute and can move on. I at the very least, want to have my unfair dismissal acknowledged and be paid FAIRLY for that.”

[13] Documents attached to the application include each of documents 1-6 attached to the VCAT application and listed in paragraph [7] above.

Is the VCAT application in relation to the dismissal?

[14] In 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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.

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

COMMISSIONER

Appearances:

L Viljoen for South West Healthcare

Hearing details:

2019.

Melbourne (telephone hearing)

November 1.

Final written submissions:

Applicant, 20 November 2019

Respondent, 27 November 2019

Printed by authority of the Commonwealth Government Printer

<PR714750>

 1 (2012) 218 IR 67.

 2 (2012) 218 IR 67, 92.

 3   Applicant’s Outline of Argument: Objection, 12 October 2019.

 4   Equal Opportunity Act 2010, s.6; s.7; s.125.