Kramersh v IPD Education Limited (Human Rights) [2014] VCAT 1439

1. Under section 76 of the Victorian Civil and Administrative Act 1998 the application is dismissed insofar as it seeks that the Applicant be reinstated as an employee of the Respondent.
2. The Respondent's application that this matter be otherwise dismissed is refused.
3. The Applicant is to file with the Tribunal and serve on the Respondent particulars of claim on or before 12 December 2014.
4. The Respondent is to file with the Tribunal and serve on the Applicant particulars of defence on or before 30 January 2015.
5. This matter is listed for compulsory conference at 10:00 a.m. on 9 February 2015 at 223 William Street Melbourne. The Applicant must attend in person. A representative of the Respondent with authority to settle the matter on that Respondent's behalf must attend. The legal representatives of the parties may attend.
6. Liberty to apply.

1. On 27 March 2014, Mr Kramersh made a direct application to VCAT under the Equal Opportunity Act 2010 (the EO Act).
2. Mr Kramersh claimed his employment as a project manager was terminated while he was on paid sick leave, with IDP Education Limited (IDP) not giving insufficient time to recover from this condition and return to work. He claimed IDP indirectly discriminated against him because he was unable to return to work due to a medical condition. He said this was in the context that since December 2012, he had capacity to work two days a week and if his employment had not been terminated it would have returned to work at IDP. Since December 2012 he sought part-time work, but had been unable to find employment. He sought orders that he be reinstated in part-time work capacity working two days a week and that IDP pay him back pay calculator two days per week from December 2012.
3. IDP denied discriminating against Mr Kramersh.
4. IDP provides education related services to international students who are currently studying in Australia and provides testing of English language proficiency for study and migration. It has about 150 employees in Australia and between 1,500 and 2,000 employees internationally.
5. IDP applied under sections 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) for the application to be struck out or dismissed due to Mr Kramersh not applying to VCAT until about 18 months after his employment was terminated.
6. I heard this application under sections 75 and 76 of the VCAT Act on 20 November 2014 and reserved my decision.

The respondent's application for the proceeding to be dismissed under sections 75 and 76

1. Section 75 of the VCAT Act gives the Tribunal discretion to dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if in its opinion all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. There have been many cases about section 75.[1]
2. If the Tribunal is not satisfied that, on one of the grounds set out in the section, the case is untenable and cannot succeed, then the matter should go to a hearing so the applicant has the chance to have the complaint heard and so the evidence can be tested in the usual way. When the high bar set is not reached, and there is simply a dispute between the parties as to the complaint, the matter should go to hearing.
3. Section 76 of the VCAT Act gives the Tribunal discretion to dismiss or strike out a proceeding for want of prosecution, whether or not all the evidence has been heard. Schedule 1 of the VCAT Act makes particular reference to this section with respect to the Equal Opportunity Act 2010. This is discussed below.

1. The facts and evidence in this proceeding, which led up to Mr Kramersh making an application to VCAT, are not in dispute.
2. In November 2011, Mr Kramersh took leave from IDP, he said due to work-related stress in the context of alleged bullying and harassment against him by individuals employed by IDP.
3. In May 2012, Mr Kramersh commenced a workers compensation claim, which in July 2012 was rejected. He disputed the rejection of that claim, which was resolved by agreement between the parties on 12 March 2014. He was legally represented throughout.
4. Returning to 14 August 2012, by letter of that date IDP wrote to Mr Kramersh following the initial rejection of his WorkCover claim. It asked that he advise whether he intended to return to work and, if so, provide IDP with a medical practitioner's report stating he was capable of performing his usual duties. IDP said if he failed to do so, it would assume he did not intend to return to work and terminate his employment in accordance with his contract of employment. IDP said if he returned to work, the performance management process commenced in November 2011 would resume.
5. By e-mail dated 22 August 2012, Mr Kramersh advised he intended to return to work when well enough to do so. He said while the WorkCover dispute continued, he would continue to send IDP copies of WorkCover certificates of capacity.
6. By e-mail dated 29 August 2012, IDP briefly described its view of the WorkCover dispute in that neither IDP nor its insurer accepted Mr Kramersh was suffering from an illness or injury compensable under WorkCover. IDP advised if he did not respond to the 14 August letter, it would proceed with the termination of his employment.
7. By e-mail also dated 29 August 2012, Mr Kramersh advised due to his medical condition he was unable to provide IDP with a return to work date. His "firm preference" was for IDP to maintain his employment until he was in a position to resume work. Mr Kramersh said if IDP proceeded to terminate his employment, he expected that under his contract of employment, he would be paid four weeks pay and any accrued leave entitlements.
8. By letter dated 3 September 2012, IDP terminated his employment, advising him he would be paid four weeks pay in lieu of notice.
9. According to Mr Kramersh, soon after this, he researched his legal options concerning the termination and concluded he could seek redress at VCAT under the EO Act. He did not seek legal advice on this from his lawyers who represented him in his WorkCover matter, nor did they provide advice to him about applying to VCAT. His own research discovered a VCAT decision which he thought would support his case. He recalled it as Mader International.
10. He appears to have been referring to Duma & Mader International Pty Ltd (Anti-Discrimination) [2007] VCAT 2288. The catchwords of the decision summarise the issues addressed as whether termination of complainant's employment constituted direct or indirect discrimination based on impairment where the employment was terminated while the complainant was on unpaid sick leave, whether a remedy was available, whether reinstatement was appropriate and what was the appropriate measure of compensation.
11. With Mr Kramersh facing the stress of the WorkCover claim, he decided not to make a VCAT application at that time. Mr Kramersh said only since making his application did he become aware of the possibility his application may be rejected if made over a year since the alleged discrimination.
12. Apart from dealing with the WorkCover claim, Mr Kramersh did not provide IDP with any further information concerning his health or his intentions concerning employment until a week after the WorkCover matter settled.
13. On 20 March 2014, for the first time Mr Kramersh advised IDP, by e-mail, that since December 2012, he had capacity to work two days a week and if his employment had not been terminated he would have returned to IDP. He alleged the termination of employment was unlawful as he had been discriminated against. He sought a response by 28 March 2014, foreshadowing the VCAT application.
14. A week later he applied to VCAT. He attached to this application two certificates of capacity and a pro forma obtained from WorkCover. One of the certificates advised he was unfit for any duties during September 2012. The other certificate advised that from 20 December 2012 to 17 January 2013 he was fit for modified duties. The work restriction was described as, "can manage up to 2 days a week". Both were signed by Dr Fiona Waters, his general practitioner.
15. Mr Kramersh provided a letter from Dr Waters dated 18 June 2014. It said:

I have seen Ivan as his GP. He came to see me with severe anxiety and depression from work related bullying in November 2011. He has continued to battle with anxiety and depression related to this. He has had to go through the significant stress and trauma of claiming compensation through the courts. At this time he would not have been mentally able to cope with the stress of a second court case claiming unlawful dismissal.

1. Ms Holt for IDP submitted the application should be dismissed under:
   1. s 75(1)(b) of the VCAT Act, on the basis that Mr Kramersh's delay in commencing the proceedings was an abuse of process; and/or
   2. s 76(1) of the Victorian Civil and Administrative Act 1998 (Vic) (VCAT Act), for want of prosecution.
2. The application was made under Division 1 of Part 4 of the Equal Opportunity Act 2010 (Vic) (EO Act) which prohibits discrimination in employment. The application alleged IDP discriminated against Mr Kramersh on the basis of a medical condition, which IDP denied.
3. Clause 18 of Schedule 1 of the VCAT Act says where such an application is made, VCAT may under section 76 summarily dismiss it if the alleged contravention occurred more than 12 months before the application was made.
4. The alleged contravention was said to have happened on 3 September 2012. The application was made on 27 March 2014, over 18 months later.
5. Ms Holt noted Mr Kramersh's explanation for the delay was, as stated in his application:

I had a WorkCover dispute, relating to a work stress injury while employed by IDP, running at the same time. The outcome of the WorkCover dispute may have had bearing on this claim and it was too stressful to run two disputes relating to the same stress condition simultaneously. The WorkCover dispute was scheduled for hearing and settled on 12 March 2014.

1. She submitted his further explanation and a short letter from his general practitioner (see below) were an insufficient basis to permit the proceeding to continue, given the detriment IDP would suffer.
2. Since correspondence between the parties in August 2009, which resulted in Mr Kramersh's employment ending, Mr Kramersh gave no indication to IDP that from December 2012 he was fit to return to work two days a week. It was not until 20 March 2014 that he emailed IDP seeking reinstatement and back pay. A week later he applied to VCAT.
3. Ms Holt submitted:
   1. If the proceeding continued, IDP would suffer prejudice due to the delay. It had employed a new employee in Mr Kramersh's previous role. There is no role into which he could be reinstated. If he had made his claim, including for reinstatement, at the time of the alleged contravention, IDP may not have re-arranged its affairs and employed a new employee until the claim was resolved; and
   2. IDP would suffer prejudice due to the passage of time including that the memories of witnesses will have been affected due to the passage of time.
4. Concerning section 75, Ms Holt referred to previous VCAT decisions, including those I discuss below, which address the factors to be considered in deciding whether to dismiss a proceeding because delay in commencing it amounted to an abuse of process. She submitted:

1. The 18 months delay in making his application was inordinate and without reasonable excuse; 2. Concerning the nature of the proceeding, Clause 18 imposes a "defacto" 12 month time limit;

1. As submitted above, IDP would suffer prejudice; and 2. The public interest required that disputes be settled as quickly as possible and there be finality of litigation. Given Mr Kramersh's deliberate choice to delay commencing these proceedings in favour of resolving his WorkCover claim, it was not in the public interest to allow him to proceed.
2. She also submitted VCAT should not consider Dr Waters' letter given it simply expressed a conclusion without any substantive reasoning behind it and Dr Waters was not available for cross-examination at the strike out hearing. It is convenient to state here, I rejected that submission saying the issue she raised may be relevant to the weight I gave the letter.

1. Mr Kramersh spoke of it not being practically possible for him to pursue his VCAT application while also pursuing the WorkCover application. In his view, even with lawyers representing him in the WorkCover application, making a VCAT application would have caused him unreasonable stress.
2. He was unable to afford lawyers to pursue the VCAT application. That remained the case and so he was representing himself.
3. He submitted Dr Water's letter was persuasive evidence in support of his position.
4. Concerning reinstatement, Mr Kramersh submitted IDP is a sizeable company and would be able to find him a position which he could productively fill.

1. Under section 76 of the VCAT Act, I dismiss Mr Kramersh's application in so far as he seeks reinstatement as an IDP employee.
2. I dismiss all other aspects of IDP's strike-out application. Apart from being prevented from seeking reinstatement, Mr Kramersh may pursue his application as he sees fit, subject to VCAT's orders.
3. In Garcia v Miles and Anor (Anti Discrimination (2012) VCAT 262 1 March 2012 Senior Member McKenzie said, referring to an earlier decision she had made, [2] that:

...in determining whether delay in lodging a complaint would amount to an abuse of process, the primary consideration was the interests of justice. Relevant factors to be considered included whether the delay was inordinate and unreasonable or inexcusable, any explanation for the delay and its adequacy, the nature of the proceeding, whether and to what extent the respondent was responsible for delay, prejudice to the respondent if the proceeding were to continue, the public interest, and the effect of the delay on the quality of justice (for example, whether the ability to conduct a fair hearing would be affected, whether the recollection of witnesses is likely to have faded, the extent to which delay would compromise the quality of evidence, whether key documents might have been lost or destroyed, and whether key witnesses might have become unavailable). All of these factors must be balanced against each other and no single one is determinative.

1. Clause 18 of Schedule 1 of the VCAT Act gives the Tribunal discretion to make an order under section 76 of the VCAT Act. Clause 18 of Schedule 1 states that the Tribunal may make an order summarily dismissing an application made under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act (my emphasis) if the alleged contravention occurred more than 12 months before the application was made.
2. So far as Mr Kramersh pursued reinstatement, I view the 18 month delay as being inordinate.
3. In that 18 months, he pursued and then settled his WorkCover claim concerning his employment with IDP (I was not made aware of the terms of settlement). While his doctor viewed him as fit to work part-time from December 2012, he gave IDP no indication of this until March 2014. IDP arranged its affairs having no indication Mr Kramersh may seek reinstatement.
4. I rejected Mr Kramersh's submission that even if the project management role he previously occupied was filled, IDP was a large organisation and could simply be placed in another position. IDP should be able to fill positions with appropriately qualified personnel, particularly in the circumstances I cite above.
5. I have considered Dr Water's letter. However, its brief nature and lack of reasoning to support its conclusion has led me to give it no weight.
6. I reject IDP's submissions that the entire proceeding should be dismissed, under either section 75 or 76.
7. Concerning any monetary claim Mr Kramersh may pursue, in the context of litigation, an 18 month delay is unfortunately not unusual.
8. While I agree with IDP's submission that witnesses' recollection of events may have faded somewhat, the reality is that witnesses commonly give evidence about events some time ago.
9. I disagree Clause 18 imposes a defacto 12 month time limit. It gives VCAT discretion to prevent injustice due to delay, in terms of application being pursued in whole or in part.
10. While I agree IDP was not responsible for the delay, that is not determinative. In terms of facing a claim for monetary compensation, I am not satisfied the delay, which given the 12 month period specified in Clause 18 means an additional six month delay, is such that IDP stands to suffer sufficient prejudice to justify dismissal of the monetary claim.
11. While there is a public interest in disputes being settled as quickly as possible, again the delay here is not material concerning the monetary claim.

1. I have made directions concerning the filing and serving of further material by both parties and scheduled a compulsory conference. Further information about the purpose and procedure for compulsory conferences may be found at the VCAT Website.
2. By giving liberty to apply, I have made it clear to the parties that if they take issue with the timetable or have other issues they wish to raise, they may seek further orders from the tribunal, either by consent or at a directions hearing, following a request in writing.

[1] The cases include the following_: State Electricity Commission of Victoria v Rabel & Ors_ [1998] 1 VR 102; and the decisions of VCAT - Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria [2002] VCAT 1395; and Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.

[2] Burrows v State of Victoria (2002) VCAT 1655