1. The respondents' application for summary dismissal or strike out under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) is dismissed.

(b) By 2 May 2016, the applicant is to file with the Tribunal and serve on the respondents written notice as to the current status of her Fair Work Act 2009 (Cth) proceeding (FW Act proceeding) and a medical certificate which addresses her then current capacity to give instructions in respect to and attend to give evidence in the FW Act proceeding and this proceeding.

(c) By 16 May 2016, the parties are to file any proposed consent orders for the future conduct of this proceeding. If proposed consent orders cannot be agreed, the parties may apply for a directions hearing, allow 2 hours.

1. If consent orders are not filed and neither party applies for a directions hearing by the time specified in order 2(c), the Tribunal will make orders in Chambers in the terms discussed in paragraph 49 of my reasons for decision.

1. No order as to costs in respect to the respondents' 26 October 2015 application under section 75 of the VCAT Act.

1. Ms Capper commenced employment with The Victorian Women's Trust (Trust) as Manger, Policy, Advocacy, Communications and Media on 1 December 2002. Her employment was terminated on 11 December 2014. The reasons given for her termination were that she had used a corporate credit card fraudulently and acted dishonestly in respect of medical certificates she supplied.
2. On 31 December 2014, Ms Capper made an application to the Fair Work Commission (Commission) alleging that she had been unfairly dismissed contrary to the Fair Work Act 2009 (Cth) (FW Act).
3. The Commission has not yet heard that application and so no findings have been made about the reasons given by the Trust for terminating Ms Capper's employment.
4. On 30 April 2015, Ms Capper made an application to the tribunal under the Equal Opportunity Act 2010 (Vic) (EO Act). Her claim was that she had been discriminated against in the course of her employment on the basis of an imputed disability and that she had been victimised contrary to the EO Act.
5. In accordance with directions made by the tribunal on 17 August 2015, Ms Capper filed a statement of claim dated 28 September 2015. In the statement of claim, Ms Capper made no allegation of victimisation but claimed that she had been treated unfavourably in a range of ways because the Executive Director of the Trust, Ms Crooks, thought she had a substance abuse problem. The claims all concerned events and interactions which pre-dated Ms Capper's employment ending and were not related to the reasons the Trust relied on to terminate that employment.
6. The FW Act proceeding was listed for hearing to commence on 1 June 2015. I was informed that the hearing was adjourned because, at that time, Ms Capper was too unwell to attend. I understand the Commission directed that the matter would not be re-listed until Ms Capper produced a medical certificate demonstrating that she was medically fit to attend. Ms Capper's counsel, Ms O'Brien QC, informed me that, to her knowledge, no such certificate had been prepared or was available and she was unable to say when Ms Capper would be able to attend a hearing at the Commission or the tribunal.
7. In the original application form submitted to commence the FW Act proceeding, Ms Capper said that the outcome she was seeking was 'Reinstatement, reimbursement of lost income, a written apology and a public statement' by Ms Crooks to staff and others in respect of the alleged misconduct in order to restore Ms Capper's reputation.[1] An outline of submissions dated 10 March 2015 was filed in the FW Act proceeding, stating that Ms Capper sought 'reinstatement, continuity of her employment and compensation in relation to lost income since 11 December 2014'.[2]
8. The application made to this tribunal sought a public apology, a written statement to staff and the Board of the Trust 'acknowledging the false statements made about me', compensation and damages.[3] The statement of claim sought declarations of contraventions of the EO Act, damages and/or aggravated damages under section 125 of the EO Act, interest and costs.[4]

The Trust's application for summary dismissal or strike out

1. The Trust has applied for an order summarily dismissing or striking out this proceeding under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). The Trust says that the proceeding is an abuse of process because it is statute barred by the FW Act. In essence, the Trust says that the EO Act application is a proceeding in relation to Ms Capper's dismissal from employment and so the application is prohibited by section 725 of the FW Act. Alternatively, the Trust seeks an order that this proceeding be stayed pending the outcome of the FW Act proceeding.
2. Ms Capper contends that her EO Act application is not prohibited under the FW Act because she makes no claim of discrimination in respect of the termination of her employment and she does not seek any economic loss in respect of lost income. She says, rather, that her claims all relate to events which pre-date the termination of her employment and were not the basis for the Trust's decision to take that action. Ms Capper contends that the proceedings are entirely separate and can each proceed as they concern different and unrelated questions of fact and law.
3. The Trust concedes that the statement of claim does not make allegations about the termination of Ms Capper's employment. However, as evidenced by documents attached to her original application and events and interactions referred to in her witness statement in the FW Act proceeding, on her own case she relies on the same matters which are in issue here. The Trust says that the inclusion of that material means that the application falls within section 725 of that Act.
4. I have decided that the claim as contained in the statement of claim filed in the tribunal is not unequivocally caught by section 725 but that there is a real risk that the FW Act proceeding may include consideration of certain factual matters which are central to this proceeding. In those circumstances, if both proceedings continue, there would be a risk of inconsistent findings being made by the Commission and the tribunal, potentially giving rise to issue estoppel depending on which was completed first. In order to avoid that situation arising, it is preferable that one of the proceedings be completed first. As Ms Capper's FW Act proceeding is ready for hearing and very limited procedural steps have been taken in the EO Act proceeding, I consider that the FW Act proceeding should go first with the EO Act to follow having regard to any findings of fact made in that forum.

1. Relevant here, section 75(1)(b) of the VCAT Act provides that, at any time, the tribunal may summarily dismiss or strike out a proceeding if, in its opinion, it is an abuse of process. The tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail.
2. There was no dispute before me that I have the power to make a summary dismissal or strike out order under section 75(1)(b) if I find that the FW Act prohibited the commencement of the EO Act proceeding because that would amount to an abuse of process. I understand there to be no dispute that such an order may be made where there would be an abuse of process of the kind which arises where issue estoppel applies.
3. Section 80 of the VCAT Act provides that the tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding. Section 130 of the VCAT Act provides that the tribunal may make an order subject to conditions or further order. The conditions or further orders may address a number of matters such as an adjournment or any matter which is necessary or desirable to give effect to an order. There was no dispute that a stay or similar order could be made if I concluded that it was appropriate for the FW Act proceeding to be completed first.

1. The FW Act provides for applications to be made in respect of claims of unfair dismissal and in respect of 'general protections' provisions (also known as adverse action). [5] These latter applications include matters such as discrimination.
2. Section 725 of the FW Act says:

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.

1. Section 729(2) states that an unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal. There was no dispute that Ms Capper's application under the FW Act is an unfair dismissal application.
2. Section 732 of the FW Act says:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(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.

1. The Trust contends that the effect of sections 725 and 732 is that Ms Capper was not entitled to bring the EO Act proceeding to the tribunal because it is a proceeding 'in relation to the dismissal' and the FW Act proceeding has not been withdrawn or failed for want of jurisdiction.
2. The parties agreed that the application of section 725 to the EO Act proceeding turns on the proper meaning of 'in relation to the dismissal' and the application of that meaning to the two proceedings.

1. The Trust referred me to the Explanatory Memorandum for the Fair Work Bill 2008 (Cth) which states that section 725 is intended to prevent a person from double dipping where they have multiple potential remedies relating to a dismissal from employment.[6] The Explanatory Memorandum makes plain that section 732 is addressed to laws such as the EO Act. Where there are allegations relating to the termination of a person's employment or adverse treatment arising from an attribute of the kind protected under state based acts such as the EO Act, the person must elect to pursue a claim under only one regime.[7]
2. Relying on the decision of Lucev FM in Birch v Wesco Electrics (1966) Pty Ltd,[8] Ms Holt, counsel for the Trust, contended that the words 'in relation to the dismissal' may be read as having two limbs. First, applications where the two proceedings each relate to and concern the circumstances of the termination of employment and the remedies sought in respect of the termination, such as compensation for economic loss. Second, where, although the other proceeding (here under the EO Act) does not make a claim based on the termination of employment, the evidence to be relied on to prove the FW Act claim is the same as that relied on to prove the claim or claims in the other proceeding.
3. In Birch the applicant made a general protections application, alleging adverse action because of her age and sex. She then made an application under the Western Australian Equal Opportunity Act 1984 alleging discrimination on the grounds of her age and sex and sexual harassment. The allegations of discrimination were the same in each proceeding as was the evidence to be relied on. The Trust also referred me to other decisions were there was commonality between the relevant proceedings. In two of those (Du v University of Ballarat and Sangare v Department of Infrastructure[9]) applications had been made in respect of alleged discrimination and under the FW Act general protections provisions.
4. Ms Holt contended that the evidence relied on by Ms Capper in the FW Act proceeding was the same as that relied on in the EO Act proceeding. The submissions contained a detailed table which showed that there were many references to the same factual matters and events in each set of pleadings. While she accepted that Ms Capper had not alleged in her statement of claim under the EO Act proceeding that the termination of her employment was discriminatory and appeared not to have claimed compensation for lost income, she contended that the overlap between the evidentiary materials submitted by Ms Capper was so great as to fall with the second limb discussed in Birch.
5. Section 387 of the FW Act sets out mandatory considerations on the question of harsh, unjust and unreasonable which include whether there was a valid reason for the dismissal related to the person's capacity or conduct (section 387(a)) and 'any other matters that the [Commission] considers relevant' (section 387(h)). Ms Holt contended that, where the Commission could consider any other matter it considers relevant, it may have regard to the evidence produced by Ms Capper as to her health and her allegations of bias against Ms Crooks.
6. The Trust contends that, if I am not satisfied that section 725 of the FW Act applies, where there is so much factual overlap, the EO Act proceeding ought to be stayed so that the FW Act proceeding can be heard and determined first.

1. On Ms Capper's behalf, Ms O'Brien contended that the decision in Birch was not of assistance or application here because it concerned an application under the general protections provisions and was a case where the material to be relied on and the remedies sought were identical.
2. She contended that Ms Capper's EO Act proceeding is entirely different from the FW Act proceeding because it is confined to events which pre-dated the termination of Ms Capper's employment, did not address the circumstances of that termination or the reasons given for it, could have been brought even if Ms Capper's employment had not been terminated and sought different remedies including for hurt and humiliation. Damages awards of that kind cannot be made under the FW Act proceeding.
3. Ms Capper's position was that neither the complaint in the EO Act proceeding or the facts of the alleged discrimination concern her dismissal. While accepting that there is an overlap in the contextual background to the two proceedings, there is no overlap in respect of the facts or relief sought which relate to each of the respective statutory breaches arising in each separate proceeding. Ms O'Brien contended that the EO Act proceeding was not in relation to Ms Capper's dismissal and so the FW Act prohibition could not apply.
4. Ms O'Brien made submissions on the question of whether the Commission would take account of background matters which are the subject of the EO Act proceeding in the course of considering whether the dismissal was harsh, unjust or unreasonable. She contended that, in proceedings of this kind, the Commission was usually reluctant to make findings about those kinds of factual matters. As I understood her submission, if the Commission finds there was a valid reason for the dismissal, the question of whether it was harsh, unjust or unreasonable is determined in the light of largely procedural matters.
5. Ms O'Brien also made submissions regarding the proper reading and effect of section 732(3). It has not been necessary for me to consider those submissions.

1. The question posed by section 725 in this context is whether the EO Act proceeding is 'in relation to the dismissal'.
2. In her FW Act application and supporting documents (including the outline of submissions and her witness statement), Ms Capper addressed the reason given for her termination and the events associated with that reason. She also set out in some detail and attached documents relating to her dealings with Ms Crooks and Ms Crooks' alleged belief that Ms Capper had a substance abuse problem which affected her work place performance and conduct.
3. As noted earlier, Ms Capper's EO Act application alleged that she had been discriminated against in a number of ways because Ms Crooks thought she had a substance abuse problem. Having reviewed the statement of claim, I am satisfied that the claims all concerned events and interactions which pre-dated Ms Capper's employment ending and were not related to the reasons the Trust relied on to terminate that employment.
4. It is correct that there is an evidentiary overlap between the proceedings however it cannot be said that the nature of them and the remedies sought are identical. I accept the proposition that the EO Act proceeding could have been brought even if Ms Capper's employment had not been terminated. While the original application filed with this tribunal addressed some of the dismissal matters which will be determined by the FW Act proceeding, they have clearly been abandoned in the EO Act statement of claim.
5. I accept that it is possible to separate the proceedings to an extent, however, I consider that to be only a theoretical process at this point in time.
6. Under section 385 of the FW Act, an 'unfair dismissal' is one which is harsh, unjust or unreasonable. The Commission is required to turn to the factors listed in section 387 to determine whether the dismissal may be characterised in that way. As described earlier, while one factor is whether or not there was a valid reason for dismissal, the Commission is able to take into account not only the procedural and factual matters listed in section 387 but also any other matter the Commission thinks relevant (section 387(h)). It is apparent on the face of section 387 that, even if a valid reason is found, the other matters listed must be addressed. As I understand it, even where a valid reason for the dismissal was found to have existed, the Commission has looked at other surrounding circumstances in order to determine whether the dismissal was nevertheless harsh, unjust or unreasonable.[10]
7. Subject to the question of relevance, the Commission appears to have an unfettered discretion as to the matters it may consider. Given the material filed by Ms Capper in the FW Act proceeding, it would potentially be open to the Commission to consider that wide range of material and events, including about conflict which existed before the termination of Ms Capper's employment.
8. While Ms O'Brien contended that it was very unlikely that the Commission would look to those matters, I understood her to agree that was not certain as, until the hearing, one could not be certain what the Commission might find to be relevant. Given that, under advice from solicitors, Ms Capper filed a witness statement which contained essentially the same material as that which is to be relied on in the EO Act proceeding, it must have been regarded as in some way relevant.
9. Here, while it is possible to draw a distinction between the two proceedings, the open ended nature of section 387(h) leaves open the possibility that the factual matters relied upon by Ms Capper here would be explored in the FW proceeding.
10. Given the test to be applied to applications for summary dismissal or strike out under section 75 of the VCAT Act, I am not satisfied that such an order ought to be made here because that would require me to decide that the pre-dismissal matters would definitely be considered by the Commission. That conclusion would require me to second guess the Commission. I do not regard that as a proper exercise of my discretion.
11. While the decision in Birch might not strictly apply here, the underlying reasoning about multiple proceedings directed towards the same facts carries weight given the terms of section 387(h) discussed above.
12. A decision to now allow both proceedings to continue, potentially at the same time, risks conflicting findings of fact being made about matters relevant to each such that issue estoppel could apply.
13. Ms Capper's contentions about the Commission's likely approach to section 387 of the FW Act application might ultimately be shown to be correct. But, until the hearing before the Commission proceeds, I cannot be certain whether it might consider and make findings of fact about events which pre-date the termination and are relevant to findings which might be made in respect of the EO Act proceeding. It might be the case that findings of fact in one proceeding do not, for the purposes of the other, amount to an issue estoppel.
14. I am satisfied that the continuation of the two proceedings may amount to an abuse of process under section 75 of the VCAT Act. The uncertainty about that matter makes it inappropriate to have both proceedings running, in effect, at the same time. In those circumstances, I consider it appropriate that this proceeding halt until the FW Act proceeding has been completed.
15. At the hearing I discussed with the parties the possibility that instead of staying the proceeding, I order that the matter be struck out with a right of reinstatement on the FW Act proceeding having been completed and Ms Capper producing a medical certificate that she was fit to give instructions and attend the tribunal to give evidence. Neither party objected to such an order being made.
16. On reflection, I have decided that, in order to allow time for Ms Capper to clarify her current capacity to give instructions and participate in these and the FW Act proceedings, I will make an order under sections 80 and 130 of the VCAT Act adjourning this proceeding and requiring that she address each of those matters, including by providing a medical certificate within two months. If the effect of Ms Capper's position is that the FW Act proceedings have not been listed for hearing and/or that she is unable to participate in those due to her health conditions, further orders would then be made.
17. The parties are invited to consider whether, if the FW Act proceeding will not or cannot proceed promptly, the appropriate course of action may be for an order to be made under sections 80 and 130 of the VCAT Act striking this matter out subject to the conditions mentioned above: that is strike out with a right of reinstatement on the completion of the FW Act proceedings and on production of a medical certificate which states that Ms Capper is able to give instructions and participate in the EO Act proceeding. Any such order might need to be subject to the respondents having leave to apply for the striking out of any parts of the EO Act proceeding which have been finalised or affected by findings of the Commission. If the parties could not resolve the appropriate form of orders, this proceeding would be listed for directions.

1. Both parties applied for costs in respect of the Trust's application. While the application for summary dismissal or strike out has not succeeded, I have concluded that it is appropriate for this proceeding to be stayed until the FW Act proceeding is finalised. In those circumstances, the usual position under section 109 of the VCAT Act that each party bears its own costs applies. No order for costs will be made.

[1] Exhibit RLL-1 to the affidavit of Rachel Lauren Loughland affirmed on 26 October 2015 - page 3 of the application form.

[2] Outline of Submissions of the Applicant, paragraph 113.

[5] Parts Part 3-2 and 3-1 respectively.

[8] [2012] FMCA 5.

[9] [2011] FWAFB 5225 and [2015] FCCA 1795 respectively.

[10] See BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 paragraph 54 and DP World Sydney Limited [2013] FWCFB 9230 at paragraphs 47 to 48 and 53.