s.394 - Application for unfair dismissal remedy

[1] An application has been made by Ms Joanne Kantzos pursuant to s 394 of the Fair Work Act 2009 (FW Act) seeking an unfair dismissal remedy in respect to the dismissal of her employment from the State of Victoria (Department of Education) (Department of Education).

[2] The Department of Education objects to the application on the basis that it is filed outside the 21 day time limit prescribed by s 394(2) of the Act. It also seeks the application be dismissed pursuant to ss 725 and 732 of the FW Act on the basis that Ms Kantzos had made an application or complaint under another law relating to her dismissal.

[3] I directed the parties to file written material in relation to these matters. My Directions asked the parties to address a series of specific questions relating to the two objections to the application. The Department of Education filed a written Submission and provided accompanying documentation. Ms Kantzos filed a series of correspondence with my chambers.

[4] On 22 December 2025, I indicated to parties that I considered the matter could be dealt with on the basis of the written materials filed, and without the need for a hearing. Later that day the Department of Education advised it agreed no hearing was necessary. On 23 December 2025, Ms Kantzos advised that she had "no objections to the Commissioner's provisional view that this matter can be determined on the material that has been filed", and that "it is not necessary to conduct a hearing".

[5] There appears no doubt the application was filed more than 21 days after the dismissal took effect. The application was filed on 26 November 2025. The application says the dismissal took effect on 11 August 2025. Thus, ordinarily, it would be necessary for the Commission to determine whether to allow a further period for the application to be made, taking into account whether there are "exceptional circumstances" within the meaning of s 394(3) of the Act.

[6] I consider it is unnecessary for me to determine that issue. The other objection made against Ms Kantzos' application is warrants the dismissal of her application in any event.

[7] From the materials filed by the parties it is clear that:

1. Ms Kantzos was employed by the Department of Education and at the time of dismissal was engaged at the Aitken Hill Primary School on a probationary basis.

[8] On 12 August 2025, Ms Kantzos was advised that a decision had been made to annul her probationary employment with the consequence that her employment with "the department" is terminated. It was alleged that she had submitted a "fraudulent" medical certificate.

• [9] On 18 August 2025, Ms Kantzos was advised by the Department of Education that it had determined to impose upon her an "employment limitation", with the effect that she may not undertake employment or work with the Department or any Victorian government school or early learning centre in any capacity. By operation of Ministerial Order No. 1388 - Teaching Service (Employment Conditions, Salaries, Allowances, Selection and Conduct) Order 2022 (the Ministerial Order), the Secretary of the Department of Education (or delegate) may impose an employment limitation which has the effect set out in the limitation[1].

1. Thus, the Department of Education has in effect imposed two sanctions upon Ms Kantzos. One was the annulment of her probationary employment. The other was the imposition of an employment limitation.

1. It appears that on 22 August 2025 Ms Kantzos sought a review of the decision to impose an employment limitation by email. In a letter sent to Ms Kantzos on 18 November 2025 she was advised that after having considered her submissions, the limitation was upheld. She was also advised she may apply for another review of the employment limitation at a later date.

• D. On 22 August 2025, Ms Kantzos lodged an Application for a Grievance Review with the Merit Protection Board. The Merit Protection Board is created pursuant to s 2.4.44 of Education and Training Reform Act 2006 (ETR Act). Its functions include to hear reviews and appeals in relation to any decision prescribed by the regulations or Ministerial Order to be a decision in respect of which there is a right of review by or appeal to a Merit Protection Board[2]. The process by which such a grievance can be lodged and is dealt with is set out in the Ministerial Order.

1. Ms Kantzos' grievance was outlined in a document that has been provided to the Commission entitled "Merit Protection Boards - Application for Grievance Review" ("the annulment grievance"). The annulment grievance seeks that the annulment of Ms Kantzos' probation be removed. It also appears to seek "compensation in terms of lost employment, stress, grievances, the lack of support, communication from the school and the truth in why the matter was treated in a wrong manner and a discriminatory manner ... Limitations placed on the school and principal for their wrong actions".
2. On 26 November 2025, Ms Kantzos filed this unfair dismissal application in the Commission. At that time, the annulment grievance had not been suspended or withdrawn. The Application says, in response to the question "Has the Applicant started any other claims", "No".
3. However, it remains the case that the annulment complaint was not been suspended or withdrawn prior to Ms Kantzod filing her unfair dismissal application and she conceded this in several of the correspondence she filed in this matter.

[10] Section 725 of the FW Act provides that:

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."

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

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

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal."

[12] Sections 726 - 731 of the FW Act (excepting s 729 of the FW Act) relate to applications such as dismissal remedy bargaining order applications, general protections applications unlawful termination applications, none of which are relevant to this matter.

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

(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.

• [14] As a Full Bench of this Commission put it, these provisions have the purpose of restricting a person with multiple remedies in relation to the person's dismissal from applying for more than one available remedy[3] - to prevent "double dipping"[4].
• [15] In Ms Jillian Troutbeck-Noy v Department of Education (State of Victoria)[5] I considered circumstances similar to this one, where an annulment grievance made pursuant to the Ministerial Order had been made prior to the making of an unfair dismissal application and had not previously been withdrawn or failed for want of jurisdiction. I found that such a complaint relates to the dismissal of an employee and is an "application or complaint under another law" within the meaning of s 732(2) of the FW Act.
• [16] In that decision, I observed that it is within the power of the Merit Protection Board, to whom the annulment complaint is made, to set aside the decision to annul a probationary employment, having the effect of the reinstatement of the employee. In that matter, the Application had sought from the Merit Protection Board that she be reinstated. I thus found that the remedy sought by the annulment complaint was one referable to unfair dismissal (see Qantas Airways Limited v David Lawless[6]). As I have summarised above, in this matter Ms Kantzos seeks in her annulment grievance that her annulment be removed. If this remedy were granted, it would have the result that Ms Kantzos' employment would be reinstated.

[17] Ms Kantzos made submissions in relation to the timing of her application (which, as I have explained above, was made outside the statutory time limit) and also submissions relating to the annulment grievance. Her submissions in relation to the annulment grievance are, in summary, as follows.

1. I took from Ms Kantzos' submissions that upon receiving the annulment notification, she was in a state of shock and confusion, and made significant efforts to understand what had happened, to some extent frustrated by a lack of response. The stress and shock she was experiencing was accentuated by the recent passing of her mother.
2. A friend told Ms Kantzos to communicate with the Union, the Merit Protection Board and the Fair Work Ombudsman (FWO) and the FWO told her to forward an application to the Commission. I took from Ms Kantzos' submissions that she was confused about what to do and not particularly assisted by the advice she received.

1. Ms Kantzos submits that the annulment grievance she submitted to the Merit Protection Board is based on "the factors or reasons for my dismissal and compensation but it does not focus on the unfairness of the dismissal decision being the limitation placed on my employment by the DOE that I cannot work in any Victorian Government School ongoing, or DET organisation or any workplace connected to the DOE". She said "this is what I am wanting to lodge with the FWC - as my current grievance lodged is not addressing this matter and I have been told to follow it up with the DOE whom have continuously refused to communicate with me to reach a solution". She said her "personal grievance with the MPB is for the annulment but not the annulment process of the limitation, which the DOE are aware of as they received a copy of the Grievance. So the Personal Grievance stated on the FWC application is for the annulment effect of my employment connected to the limitation placed on my employment". She further submitted that the "FWC application - focus being on unfair dismissal with the fwc is based on the limitation placed on me and its affects; how it has affected my well being, effected my job prospects, my exceptional level of integrity and conduct and financially".

1. Ms Kantzos also submitted that she has not withdrawn her complaint to the Merit Protection Board before making her unfair dismissal claim "because they are related to two different factors of my claims which the DOE is well aware of based on the Merit Protection Board application which they have a copy of an responded too. The Merit Protection Board is not focusing on the extended reasoning of my FWC claim - the restriction placed on my application by the DOE of ongoing work limitation in Victorian Government Schools and all DET companies. The personal grievance and the FWC dismissal annul reasons are two different aspects and issues which the DOE is highly aware of."
2. Ms Kantzos submitted that "Principal Mr Hansen has breached the contract terms and annulled my employment unlawfully. Mr Hansen annulled the probation employment which is not lawful. He did not annul my ongoing contract he "annulled my probationary employment." which is not lawful and it there is a wrongful stance place on me by the Principal making it a misconduct investigation leading to a limitation placed on me under unlawful ground".
3. Ms Kantzos also submitted that "Mr Hansen refused to employ me by sending me the unlawful dismissal - "annulment of my probationary period employment" but he didn't annul my ongoing contract of employment, as my job offer was ongoing-leading to an unlawful action placing a limitation on me - work rights in all Government school and Departments and a misconduct investigation against me under false pretences". She also appeared to submit that Mr Hansen refused to employ her because she exercised her legal rights to "start employment on the 12 August 2025 instead of the 4 August 2025 because I had a parent who passed away".
4. Much of Ms Kantzos' submissions relate to the unfairness she claims exists in relation to the decision to annul her probation (and terminate her employment). She was advised the reason for the decision was because she is alleged to have submitted a "fraudulent" medical certificate. Ms Kantzos vehemently denies this allegation. The various submissions Ms Kantzos has made about this allegation and her denial of it are not summarised or addressed directly in this decision because at this stage I am not dealing with the unfairness or otherwise of that decision - rather - I am dealing exclusively with the "double dipping" provisions of the Act which I consider prevent the Commission from having the power to deal with the fairness or unfairness of Ms Kantzos' dismissal. I make no comment on the fairness or unfairness of the decision to terminate Ms Kantzos' employment nor in relation to the allegation upon which it was based.

[18] In her submissions, Ms Kantzos appears to distinguish between the grievance she has submitted to the Merit Protection Board seeking that the decision to annul her probationary employment be reversed, and the grievance she submitted seeking the removal of the employment limitation. It appears Ms Kantzos submits that her unfair dismissal claim is aimed at the circumstances relating to the employment limitation, and not the annulment of her probationary employment.

• [19] I do not accept this submission. Ms Kantzos has confirmed she lodged a grievance with the Merit Protection Board seeking the reversal of the decision to annul her probationary employment and thus reinstate her employment. That application was made on 22 August 2025 and had not been withdrawn or determined before she filed her unfair dismissal claim on 26 November 2025. The FW Act makes very clear that in relation to an unfair dismissal claim, the remedies the Commission may award are the reinstatement of Ms Katzos' employment (which the Commission must consider as a primary remedy[7]) or compensation in lieu of reinstatement[8]. In so far as Ms Kantzos submits that her unfair dismissal claim is aimed at seeking remedies in relation to the employment limitation (such as the removal of that limitation or awarding compensation in relation to its effects) the Commission does not have the power to do so. Even if it did, the grievance lodged with the Merit Protection Board, which I consider seeks the same remedy as that which might flow from an unfair dismissal claim, was made prior to her unfair dismissal claim, and, at that time, had not been withdrawn or failed for want of jurisdiction.

[20] The FW Act provides clearly that an unfair dismissal application must not be made when a person has made an application or complaint under another law in relation to the dismissal, and the application has not been withdrawn or failed for want of jurisdiction. When she filed her unfair dismissal claim, Ms Kantzos had previously made such an application or complaint. Her argument that the unfair dismissal claim seeks to remediate a different sanction lacks merit for the reasons explained above. None of her other submissions, such as the confusion and stress she was experiencing at the time, or her complaints as to how her matter has been handled by her former school principal or the Department mitigate against the operation of these provisions of the FW Act. As I understand it, the complaint to the Merit Protection Board remains on foot.

• [21] On that basis the application must be dismissed. An Order[9] to that effect will issue.

[3] Qantas Airways Limited v David Lawless [2014] FWCFB 3582 [26]

[4] Explanatory Memorandum, Fair Work Bill 2009 [2695], [2707]

[5] [2024] FWC 2811

[6] [2014] FWCFB 3582

[7] Fair Work Act 2009 s 390

[8] Fair Work Act 2009 ss 390(1) and 392(1)

[9] PR795872

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