Fair Work Act 2009

s.394 - Unfair dismissal

Application for unfair dismissal remedy - jurisdictional objection relating to multiple applications - VEOHRC application for dispute resolution

• [1] This decision relates to an application by Ms Judy Chea for an unfair dismissal remedy. Ms Chea claims that she was unfairly dismissed by her former employer, Kildare Education Ministries (Kildare). Kildare has raised a jurisdictional objection to Ms Chea's application. Kildare claims that Ms Chea made an application to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) relating to the dismissal and therefore she is prohibited from making an unfair dismissal application under s 725 of the Fair Work Act 2009 (Cth) (FW Act). This decision considers this jurisdictional objection.

• [2] The parties filed written submissions regarding this matter. As there were no contested facts regarding the jurisdictional objection, the parties agreed that the matter should be determined on the papers.

• [3] On 12 May 2025, Ms Chea made a complaint to the VEOHRC regarding claims of "unfair and unreasonable treatment" by her employer following an injury and seeking "urgent help" to prevent her potential termination of employment.

• [4] VEOHRC provides a voluntary dispute resolution service in accordance with the Equal Opportunity Act 2010 (Vic) (EO Act). By filing a complaint with VEOHRC, Ms Chea in effect, made an application to VEOHRC to conduct its dispute resolution procedure in relation to the matters outlined in her complaint.

• [5] On 15 May 2025 Ms Chea attended a show cause meeting with Kildare. On the same day, Kildare received correspondence from VEOHRC which notified Kildare of VEOHRC's dispute resolution process and included a copy of Ms Chea's complaint.

• [6] On 21 May 2025, Kildare terminated Ms Chea's employment.

• [7] On 6 June 2025, Kildare notified VEOHRC that it did not wish to engage in dispute resolution. As the VEOHRC dispute resolution process is voluntary, Kildare's withdrawal from the process lead to the closing of the complaint.

• [8] On 6 June 2025, VEOHRC wrote to Ms Chea notifying her of the Kildare's withdrawal from the dispute resolution process, stating that:

"The Commission will now close the matter pursuant to section 115(2) of the Equal Opportunity Act 2010.

For further information about how you may proceed, telephone the Victorian Civil and Administrative Tribunal on 1300 018 228 or see www.vcat.vic.gov.au."

• [9] On 8 June 2025, Ms Chea lodged an application for an unfair dismissal remedy in the Fair Work Commission

• [10] Kildare submits that Ms Chea is barred from making an unfair dismissal application under s 725 of the FW Act which prohibits an applicant taking multiple actions in relation to dismissal.

• [11] Part 6-1, Division 3 of the FW Act deals with preventing multiple actions in certain circumstances. Subdivision B provides for preventing multiple action in relation to "Applications and Complaints Relating to Dismissal". Section 725 provides:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of the sections 726 to 732 in relation to the dismissal if any other of those sections applies."

• [12] The Explanatory Memorandum provides the following insight into the purpose of Subdivision B and s 725:

"The 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.[1]

In all cases the anti-double dipping provisions will not apply where the initial application has:

• been withdrawn; or
• failed for want of jurisdiction.

This 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."[2]

• [13] Sections 726-732 set out the applications or complaints that are covered by s 725.

• [14] Relevantly, section 729 provides that unfair dismissal applications are a type of application to which s 725 applies.

• [15] Section 732 provides for applications and complaints under "other laws":

732 Applications and complaints under other laws

(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

• [16] In relation to this matter, section 725 acts to prohibit Ms Chea making an unfair dismissal application if:

• she has already made an application or complaint under another law in relation to her dismissal (s 732(1)(a)); and
• such application or complaint has not
  • been withdrawn by her; or
  • failed for want of jurisdiction (s 732(1)(b)).

• [17] Kildare argues that Ms Chea's VEOHRC complaint is a complaint within the meaning of s 732(1)(a) of the Act, as it is a complaint or application for dispute resolution under section 113 of the EO Act. Kildare submits the VEOHRC complaint is a complaint "in relation to the dismissal" as required by s 732(1)(a). This is because even though the complaint was made prior to Ms Chea's dismissal, Kildare argues it is clear the Applicant made the VEOHRC complaint in order to protect her employment and avoid the termination of her employment. Kildare submits that the unfair dismissal application and the VEOHRC complaint have a "significant amount of commonality."[3] Kildare relies on Birdie Flanagan v Reliance Pty Ltd [2021] FWC 2663 and Rajwinder Kaur Gill v Karan Grewal Pty Ltd T/A Curry Palace FWC 870 to support its position that an application made prior to a termination may still counted as an application in relation to dismissal under s 725.

• [18] Kildare further submits that Ms Chea has not withdrawn her complaint, nor has it failed for want of jurisdiction. In this regard Kildare relies on Du v University of Ballarat [2011] FWAFB 5225, where a Full Bench found a complaint made to VEHREOC under an earlier version of the EO Act was an application for the purposes of s 732, and further that a decision by the VEOHRC to dismiss the complaint, could not be regarded as the Applicant withdrawing the complaint.

• [19] As discussed above, the purpose of s 725 of the FW Act is to prevent "double dipping" and access to multiple remedies in relation to a dismissal.

• [20] It is uncontested that Ms Chea is currently not pursing any other application or complaint in relation to her dismissal outside of her application for unfair dismissal. At the time of making her application for an unfair dismissal remedy, Ms Chea had no other application relating to her dismissal on foot. Her VEOHRC complaint had been closed following Kildare's withdrawal from the dispute resolution process. For Ms Chea to pursue any further claim in relation to her dismissal after her complaint was closed, including pursuing a claim to the Victorian Civil and Administrative Tribunal (VCAT), she would be required to make a new application. Ms Chea has not made an application to VCAT. Ms Chea has apparently made the decision that an unfair dismissal application is a more appropriate way to pursue her dismissal claim than a claim for breach of the EO Act.

• [21] The question relevant to this determination is whether the now closed VEOHRC complaint prohibits Ms Chea from making an unfair dismissal application.

• [22] I accept Kildare's submissions that Ms Chea's complaint to the VEOHRC is an application or complaint under section 732(1)(a) of the FW Act. Despite being made prior to her dismissal, Ms Chea's complaint to the VEOHRC clearly related her foreshadowed dismissal.[4]

• [23] By lodging a complaint with the VEOHRC, Ms Chea brought a dispute to the VEOHRC in accordance with s 113 of the EO Act_._ The VEOHRC provides a dispute resolution process to deal with certain complaints in accordance with the "Principles of dispute resolution offered by the Commission" in s 112 of the EO Act. Importantly, and in accordance 112(d) of the EO Act, the VEOHRC can only provide dispute resolution if parties voluntary agree to partake in the dispute resolution process.

• [24] Once Kildare withdrew from dispute resolution process, the VEOHRC no longer had jurisdiction to conduct the dispute resolution procedure. Ms Chea's application to VEOHRC to conduct dispute resolution failed for want of jurisdiction.

• [25] I acknowledge that normally we think of "jurisdiction" in the context of the exercise of judicial power. However, ultimately, the VEOHRC is a statutory body who is empowered to perform certain functions under legislation. It is very clear that its power or "jurisdiction" to run a dispute resolution process is tied to it being voluntary.

• [26] This current matter can be distinguished from Du v University of Ballarat [2011] FWAFB 5225. Firstly, Du concerned an earlier version of the EO Act which is no longer applicable. Moreover, Du did not concern a jurisdictional issue. Du concerned a complaint to VEOHRC that did not proceed because VEOHRC made a decision not to entertain the complaint because it lacked substance. The Applicant in Du then failed to refer the complaint to VCAT for hearing.

• [27] Finally, I am fortified in my reading of s 732(1)(b)(i) of the FW Act as it is also consistent with the purpose of this section in ensuring Ms Chea "does not miss out on a remedy because [she was] unable to make a competent application for another remedy or where [she has] realised another remedy may be more appropriate than the remedy [she] initially sought."[5]

• [28] As Ms Chea's VEOHRC complaint has failed for want of jurisdiction, Ms Chea is not prohibited under s 725 of the FW Act from making an application for an unfair dismissal remedy.

• [29] Accordingly, I dismiss the jurisdictional objection. I will shortly issue directions for the hearing of Ms Chea's application for unfair dismissal remedy.

[1] Explanatory Memorandum Fair Work Bill 2008 at 2707

[3] Rajwinder Kaur Gill v Karan Grewal Pty Ltd T/A Curry Palace [2018] FWC 870 at [43]

[4] See for example Dixon & Minhas v United Workers' Union [2024] FWCFB 422 at [23] where a Full Bench found seeking permanent injunctive relief against a dismissal would be considered "in relation to" a subsequent dismissal.

[5] Explanatory Memorandum Fair Work Bill 2008 at 2711

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