1 Pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 the applicant's complaint in this proceeding is dismissed in so far as it relates to his termination of employment by the respondent in February 2002 and/or the adequacy of the compensation or other relief awarded to him by the Australian Industrial Relations Commission.

2 Application for summary dismissal otherwise dismissed.

3 Adjourned to directions hearing 9.30 a.m. 24 February 2004.

1 Mr Fernandez migrated from India to Australia on 7 December 1986 and commenced employment with an organisation which he says was known as `ACI Fibreglass' on 7 January 1987 as a process worker. Subsequently he was employed in the same organisation as an engineering storeman in the insulation plant. The employer company is now known as Insulation Solutions Pty Ltd. On 12 May 2000 Mr Fernandez lodged a statement of complaint with the Equal Opportunity Commission complaining that the had been subjected to discrimination on the basis of race, contrary to the Equal Opportunity Act 1995 and had been subject to continuous harassment in employment. His lengthy complaint related to `many incidents that I have experienced at my workplace from June 1987 to the present'.

2 Mr Fernandez' complaint was referred to this Tribunal by the Equal Opportunity Commission by a letter dated 5 September 2000, initiating Proceeding A389/00. On 20 April 2001 Mr Fernandez withdrew his complaint four days before it was listed for hearing. Insulation Solutions then known as Amatec applied for its costs for the whole of the proceeding including a costs application. The company's costs application was heard on 17 August 2001 by Deputy President McKenzie who gave her decision on 7 September 2001 in which she ordered that Mr Fernandez pay the company's costs incurred from 2 to 20 April and 40 percent of the company's costs with regard to the costs application. Those costs were to be fixed in accordance with County Court Scale `A'.

3 In a document dated 6 June 2003 Mr Fernandez made a further complaint to the Equal Opportunity Commission against Insulation Solutions Pty Ltd, this time alleging that he had been subjected to victimisation contrary to the terms of the Equal Opportunity Act. The Equal Opportunity Commission advised Mr Fernandez in a letter dated 6 August 2003 that it declined to entertain the complaint and reliance on Section 108(1)(b) and (ba) of the Equal Opportunity Act. In a letter dated 7 October 2003 it referred the complaint to this Tribunal pursuant to Section 108(3) of the Equal Opportunity Act. This reference commenced the present Proceeding A377/2003. The proceeding came on for directions before Deputy President Coghlan on 24 November 2003. The company foreshadowed an application to have the complaint `struck out' pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. Accordingly, Mrs Coghlan gave directions for the filing of submissions and fixed the application for strike-out for hearing on 27 January. That application came on for hearing before me.

4 Meanwhile, Mr Fernandez had been made redundant by the company in February 2002. As a result he brought proceedings for wrongful dismissal before the Australian Industrial Relations Commission. That application came on before Commissioner Holmes on 7 August 2002. On 12 December 2002 the learned Commissioner ordered the company to pay Mr Fernandez $17,010 subject to the usual tax deductions.

5 No order has been made for the particularisation of Mr Fernandez' victimisation complaint. The statement of complaint as referred by the Commission consists of some nine typed pages of narrative. The gravamen of the complaint is that from November 2000 onwards the company subjected Mr Fernandez to adverse treatment in his employment culminating in his being made redundant in February 2002. Mr Fernandez complains that his adverse treatment continued beyond that date leading to his receiving less than the full entitlement that he might have received from the proceedings in the Industrial Relations Commission because the adverse treatment meted out to him by the company prejudiced him in the conduct of those proceedings. In particular he complained that the company failed to advise the Commission of a move put into effect in August-September 2003 whereby all `non-core' functions at the company's establishment where Mr Fernandez was to work were `out sourced' to a company known as Skilled Engineering.

6 Ms Mummé, the Solicitor for the company, submitted that the victimisation complaints made by Mr Fernandez fell into three categories:

(a) Miscellaneous allegation that adverse treatment in employment going back to November 2000;

(b) Complaints about the termination of Mr Fernandez' employment; and

(c) Complaints of wrongful action by the company leading to Mr Fernandez' receiving inadequate compensation from the Industrial Relations Commission.

7 Mr Fernandez did not dissent from this characterisation of his victimisation complaint.

8 It is unnecessary for me to set out in detail the submissions made by each of the parties at the hearing before me. I will turn to them where necessary in disposing of the present application. Mr Fernandez referred to the remarks of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 where his Honour said that a summary dismissal of a claim should only be made in the clearest of cases and the dicta of Sheppard J of the Federal Court to the effect that in considering such an application one should err on the side of caution Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685.

9 Mr Fernandez' complaint is brought pursuant to Sections 96 and 97 of the Equal Opportunity Act 1995 which were in the following terms:

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person--

(b) has brought any other proceedings under this Act against any person;

(c) has given evidence or information, or produced a document, in connection with any proceedings under this Act;

(d) has attended a compulsory conference at the Tribunal;

(e) has otherwise done anything in accordance with this Act in relation to any person;

(f) has alleged that any person has contravened a provision of Part 3, 5 or 6, unless the allegation is false and was not made in good faith;

(g) has refused to do anything that would contravene a provision of Part 3, 5 or 6--

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for sub-section (1)(f) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant--

(a) whether or not a factor in sub-section (1) is the only or dominant reason for the treatment or threatened treatment as long as it is a substantial reason;

(b) whether the person acts alone or in association with any other person.'

10 It is not in dispute that as of the period covered by this complaint, Mr Fernandez had made a complaint against the company. Nor as I understood Ms Mummé's submission was it contested that the allegations made by Mr Fernandez could be regarded as `detriments' for the purposes of Section 97(1) of the Act.

11 The application by the company respondent is made pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 which is in the following terms:

`(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion--

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by--

(a) the Tribunal as constituted for the proceeding; or

(4) An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.'

12 The application is expressed to be for a `strike-out' of the proceeding. It is clear however that what the respondent company seeks is not a strike-out of the traditional type which courts make in a variety of circumstances, leaving it open to the sufferer of the order to file an amended pleading re-file an application and so on, rather, the evident purpose of today's application is to bring a permanent end to this proceeding. The use of the word `strike-out' in the present application is presumably explicable on historical grounds. When the Tribunal's Anti-Discrimination jurisdiction was exercised by its predecessor, the Equal Opportunity Board, the power to strike-out proceedings was found in Section 44C of the Equal Opportunity Act 1984 and then in Section 109 of the Equal Opportunity Act 1995. The power of strike-out in those provisions was regarded as the equivalent of a power of summary dismissal State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, 104 per Tadgell JA. I will treat the present application as in substance one for summary dismissal of the entire proceeding.

13 As previously noted the Australian Industrial Relations Commission has found that Mr Fernandez' redundancy was a harsh, unjust or unreasonable dismissal exercising power under Section 170CE of the Workplace Relations Act 1996. Ms Mummé submitted in the circumstances that Mr Fernandez was precluded from obtaining any further relief in respect of that redundancy in any other venue. She relied upon Section 170HB of the Workplace Relations Act 1986. The relevant parts of that section are sub-sections (1) and (4) which are in the following terms:

(1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

(d) harsh, unjust or unreasonable (however described); or

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination

(4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application under the application:

14 The evident purpose of those provisions is to make the Industrial Relations Commission a `one stop shop' for unjust dismissal claims that are brought to it. Such a claim cannot be brought to the Commission if a claim for relief with respect to a termination is pending elsewhere (sub-section (1) and once relief has been given by the Commission the person `is not entitled to take proceedings for any other remedy ...'.

15 The first question in considering the application of these provisions to the present proceeding is whether this proceeding can be regarded as `for a remedy in respect of [the termination] ... under a law of the State or Territory'. As previously noted this application for relief by Mr Fernandez is brought pursuant to the Equal Opportunity Act 1995 which is the law of the State of Victoria and is therefore `a law of a State ...'. In so far as Mr Fernandez complains of the circumstances surrounding his redundancy, in my view, the present proceeding is to be regarded as `in respect of' the termination of his employment. In the Trustees Executors and Agency Co Ltd v Reilly [1941] VicLawRp 22; [1941] VLR 110, 111 Mann CJ said:

`The words "in respect of" are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer.'

16 His Honour's analysis of the expression `in respect of' has been quoted and approved many times since both in this country and in England. There clearly is such a connection as is comprehended by the phrase `in respect of' between Mr Fernandez' termination of employment by the February 2002 redundancy and that portion of his complaint of victimisation relating to his termination. Section 170HB appears therefore to give the company a cast iron defence to that portion of Mr Fernandez' complaint. In Ruddell v State of Victoria (Department of Human Services) [2001] VCAT 1510 Deputy President McKenzie accepted that Section 178HB of the Workplace Relations Act 1996 could operate in precisely this way in proceedings under the Victorian Equal Opportunity Act 1995.

17 This portion of the applicant's complaint cannot succeed. Its prosecution is therefore frivolous and vexatious and its dismissal pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 is authorised and should be effected, see Williams Civil Procedure Victoria [1 23.01.15] (Service 161). The clear defence means that a portion of the complaint cannot succeed and should be summarily dismissed. Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92; Reed International Books Australia Pty Ltd (trading as Butterworths) v King and Prior Pty Ltd (1993) 11 ACSR 560. This is a sufficiently clear case to justify the summary dismissal of this portion of the complaint in accordance with the principles enunciated by Barwick CJ in the General Steel Industries' case and relied upon by Mr Fernandez.

The Adequacy of Compensation Awarded by the Australian Industrial Relations Commission

18 Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 authorises the summary dismissal of a proceeding, or a part of a proceeding, if it constitutes an abuse of process. The issue of the adequacy of compensation for Mr Fernandez' termination or redundancy in February 2002 was heard and determined by the Australian Industrial Relations Commission. Subject to any provisions in the Workplace Relations Act or related legislation for appeals from the Commission's determination or for a reopening of its decision, its determination was final and binding. It is an abuse of process to seek to reopen that determination by any other means, whether in the Commission or in this Tribunal. In Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290, 293 Davies AJA said:

`It is an abuse of process for an applicant to seek to bring repeated applications to a Court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions.'

19 This is a fortiori here where the effect of what Mr Fernandez seeks here is to have this Tribunal retry his unfair dismissal application heard in the Industrial Relations Commission with supplementary evidence.

20 Once again, the abuse of process inherent in Mr Fernandez' attempt to achieve this result is clear enough to justify the high standard of persuasion required by Barwick CJ in the General Steel Industries' case.

21 In addition, it may be thought that to attempt to obtain supplementary compensation for the 2002 dismissal or redundancy would be in the teeth of Section 170HB(4) of the Workplace Relations Act 1996 which would appear to bar any such remedy in this Tribunal independent of the doctrine of abuse of process already referred to.

22 In his submissions on the present application Mr Fernandez complained that the company failed to apprise him of its proposed outsourcing of non-core functions at his former place of employment which was put in hand in August and September 2002. Those still employed there in non-core positions were invited to seek employment with Skilled Engineering, the company which was providing the outsourced services. Mr Fernandez says that in so far as he was not apprised of this opportunity, he was deprived of the opportunity to seek employment from Skilled.

23 There are a number of reasons why he should not be permitted to prosecute such a claim in the present proceeding. First, the complaint which he made to the Commission and the matter which was referred to the Tribunal for hearing and determination was not that the company failed to keep him informed of these developments but rather that it failed to keep Commissioner Holmes of the Australian Industrial Relations Commission informed. Mr Fernandez conceded in answer to a question from me that there is no basis for suggesting that Commissioner Holmes would have given Mr Fernandez any further relief had he been told of these matters. Secondly, paragraph 46 of the learned Commissioner's reasons state:

However, the Commission was advised on 22 August 2002 by the respondent's representative that three other trade assistants were terminated on 5 September 2002 ...

24 The termination on 5 September 2002 was part of the `out sourcing' to Skilled Engineering. The premise for the allegation therefore appears not to be made out. Following the hearing I was provided with a copy of a facsimile transmission from the company's solicitors to Commissioner Holmes and to Mr Addison of the Australian Manufacturing Workers Union, who represented Mr Fernandez in the Commission hearing. This facsimile dated 23 August 2002 stated:

We are instructed by our client, Insulation Solutions, that it announced last Wednesday, 14 August 2002 that it is engaging Skilled Engineering to carry out all non-core service functions at its plant in Dandenong. This means that all the maintenance roles including the three remaining C11 trades assistant positions will become redundant with effect Friday 6 September 2002.

25 The passage in Commissioner Holmes' reasons for decision diverges as to the dates. First, he says the Commission was informed on the 22nd of August not the 23rd and the redundancy was said to take effect from the 5th of September rather than the 6th of September. I infer however that these were merely clerical errors of transcription in the learned Commissioner's reasons for decision.

26 In my view, this complaint cannot be entertained by the Tribunal because it was not made to the Commission and was not referred to the Tribunal for consideration. Even if I were wrong, there seems to be a lack of factual basis for the allegation when one has regard to the correspondence that has been produced and the terms of Commissioner Holmes' reasons for decision. Finally, since Mr Fernandez was not employed at the company's Dandenong facility as at the date of the out sourcing and had not been for some months previously, the entitlement to interview by Skilled, whatever value might be ascribed to it was not an advantage that was according to its terms open to him. For these reasons even if contrary to my belief the Tribunal has jurisdiction to entertain this portion of his complaint it should be dismissed as lacking in substance. Once again, I believe this appears with the necessary clarity in accordance with the principles enunciated by Sir Garfield Barwick in the General Steel Industries' case.

Miscellaneous Grievances Prior to February 2002

27 The only argument urged by Ms Mummé in support of the application to dismiss Mr Fernandez' complaint with regard to these matters is that they are `stale' and that it is practically difficult for her client to defend itself against allegations arising out of matters occurring three years ago. She relied upon a decision of Ms Lanteri in Hannah v Music and Mechanical Workshop Inc. [2000] VCAT 415. In Hannah's case Ms Lanteri considered that delay in lodging a complaint might be taken into account as a factor leading to a conclusion that a complaint was lacking in substance. She did not however suggest that delay in itself and without more could justify a summary dismissal. Moreover, she said that in considering delay as a factor indicating lack of substance in a complaint it was proper to see it in the context of the reasons for the delay.

28 In the present case there has been significant delay in lodging this complaint. Mr Fernandez' explanation was that initially he feared that to make a complaint of victimisation would only intensify the victimisation to which he was subject. Since his employment was terminated in February 2002 this scarcely explains delays after that month. Again, concentration on his earlier discrimination complaint in the Tribunal and wrongful dismissal complaint in the Industrial Relations Commission could be regarded as distracting him from the present victimisation allegation but the industrial relations matter was concluded in December 2002 and his other proceeding in this Tribunal was concluded in April 2001 as to the substance and later that year on the question of costs.

29 I accept that there has been unreasonable and unexplained delay by the applicant, nevertheless this is not in itself sufficient to justify a summary dismissal.

30 The application for summary dismissal succeeds as to those parts of the complaint relating to the termination of Mr Fernandez' employment and the adequacy of the compensation or other relief in relation to that termination but fails as to the other elements of his complaint.