AM v Department of Justice and Community Safety [2026] FWC 1511

1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal AM v Department of Justice and Community Safety (C2025/11877) COMMISSIONER ALLISON MELBOURNE, 29 APRIL 2026 Application to deal with contraventions involving dismissal – jurisdictional objection relating to multiple applications – section 725 – VEOHRC application – “in relation to the dismissal” [1] This decision concerns an application made by Ms AM1 (Applicant) for the Fair Work Commission to deal with a dismissal dispute under section 365 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant alleges she was unlawfully dismissed from her employment with the Victorian Department of Justice and Community Safety (DJCS) in contravention of Part 3-1 of the FW Act. [2] DJCS has raised a number of jurisdictional objections to Ms AM’s application, including that the application is prohibited pursuant to section 725 of the FW Act because of a previous application the Applicant made in the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). This decision considers the section 725 jurisdictional objection. Background [3] Ms AM was employed by DJCS as a senior legal policy officer from 30 June 2025. [4] On 24 October 2025, DJCS wrote to Ms AM regarding concerns in relation to her capacity to safely perform the inherent requirements of her role. DJCS placed Ms AM on paid leave and subsequently sought further medical information from Ms AM. [5] Ms AM’s employment ended sometime between 31 October 2025 and 18 November 2025. The parties are in dispute regarding the actual date the employment ended. [6] DJCS claims Ms AM voluntarily resigned from employment on 31 October 2025 following Ms AM and DJCS negotiating a separation package. DJCS further claims a separation and release agreement was signed on 31 October 2025. [7] Ms AM acknowledges she sent a resignation email and signed a separation and release agreement. However, Ms AM claims she withdrew her resignation and agreement to the separation and release agreement and continued employment with DJCS. Ms AM claims her employment ended by way of dismissal either on 6 November 2025 when her access to work [2026] FWC 1511 [Note: An appeal pursuant to s.604 (C2026/7045) was lodged against this decision.] DECISION -- 1 of 8 -- [2026] FWC 1511 2 emails and systems was cut off, or on 18 November 2025 when DJCS declined to engage further in a grievance process Ms AM had initiated under the enterprise agreement. [8] On 2 November 2025, Ms AM filed a complaint with the Victorian Equal Opportunity & Human Rights Commission.2 The complaint relevantly stated: “I allege discrimination and victimisation against me on the basis of disability (Complex Post-Traumatic Stress Disorder), subjected me to coercion and adverse treatment, and breached my human rights under the Equal Opportunity Act 2010 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The discriminatory conduct and breaches of legislation, involved: Specifically, between 24 October and 31 October, DJCS: - Removed me from duty and denied me outside work approval despite medical clearance; - Failed to accommodate my recognised disability (Complex Post-Traumatic Stress Disorder). Failure to allow me to return to work and to provide reasonable adjustments after I was certified fit for work. - Victimisation for lodging a Review of Action. - Procedural unfairness, misuse of the inherent requirements’ process, and privacy interference. - Threatened me with an ‘inherent requirements’ process, and privacy interference. - Threats and economic pressure to resign and sign a Settlement Agreement under duress. - Misrepresentation of settlement terms (superannuation and confidentiality)…” [9] Later in the complaint Ms AM refers to: • Signing the settlement and release Agreement on 31 October 2025 “under pressure”, and as a result of misleading statements; and • Later on 31 October 2025 withdrawing her consent for the settlement and release agreement. [10] On 24 November 2025, Ms AM made a general protections application to the Commission under section 365 of the FW Act. [11] DJCS became aware of the VEOHRC complaint on 12 January 2026 when they received an email from the VEOHRC notifying them of the complaint. The email from VEOHRC states: “Please find attached the following documents: • A letter from the [VEOHR] Commission. • A copy of the complaint and associated documents. • Relevant excerpts from the Equal Opportunity Act 2010 (Vic). • Information about dispute resolution at the [VEOHR] Commission.” -- 2 of 8 -- [2026] FWC 1511 3 [12] The email from VEOHRC does not include Ms AM’s original complaint. Rather it includes a document entitled “Without Prejudice Case Outline for VEOHRC Conciliation _ correct version (002)”(Case Outline for VEOHRC Conciliation). [13] Shortly thereafter DJCS raised a section 725 jurisdictional objection to the current general protections application. Relevant Procedural History [14] DJCS has raised a number of jurisdictional objections to this application, namely: • The application is out of time (based on a termination date of 31 October 2025); • There was no dismissal as Ms AM resigned; • There is a signed settlement agreement that bars this (and other) applications; and • Ms AM has made multiple applications relating to dismissal and is therefore barred by section 725 from bringing this application. [15] Ms AM disputes the application is out of time (as she contends she was dismissed on or after 6 November 2025), disputes that her employment ended by way of resignation, and argues she is not bound by the terms of settlement as she signed under duress. Ms AM further argues that her VEOHRC complaint is not a multiple application for the purpose of section 725. [16] Generally, when multiple jurisdictional issues are raised, the Commission will first consider whether the application was made in time. However, in this matter there appears to be considerable overlap between the extension of time matter, whether Ms AM was dismissed and whether Ms AM is barred from making an application under a properly executed term of settlement. The terms of settlement adds a further complication to this application. While the terms of settlement were not tendered by either party in this matter, if Ms AM wishes to pursue an application in relation to her termination she may need to challenge the terms of settlement in a court of relevant jurisdiction. [17] Accordingly, I determined to deal with the section 725 jurisdictional objection as a discrete matter in the first instance on the basis it may be more efficient for the parties. The parties initially agreed to me making a determination on the papers. However, on 13 March 2026, Ms AM withdrew her consent for the matter to be heard on the papers. As a result, a short determinative conference was held in this matter on 30 March 2026. [18] On the morning of 30 March 2026 prior to the determinative conference, Ms AM asked the Commission to convert her section 365 application to a section 372 application and engage in conciliation. I accepted DJCS’ submissions that it was not appropriate to convert the current application, particularly in circumstances where there is an extension of time application concerned. Accordingly, the determinative conference went ahead. [19] I now turn to consider the section 725 jurisdictional objection. Legislation Section 725 of the FW Act [20] Part 6-1, Division 3 of the FW Act deals with preventing multiple actions in certain -- 3 of 8 -- [2026] FWC 1511 4 circumstances. Subdivision B provides for preventing multiple action in relation to “Applications and Complaints Relating to Dismissal”. [21] Section 725 provides: “General rule 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.” [22] Sections 726-732 set out the applications or complaints that are covered by section 725. [23] Relevantly, section 727 provides that general protections Fair Work Commission applications are a type of application to which section 725 applies. [24] Section 732 provides for applications and complaints under “other laws”: “732 Applications and complaints under other laws (1) This section applies if: (a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and (b) the application or complaint has not: (i) been withdrawn by the person who made the application; or (ii) failed for want of jurisdiction. (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 (b) a law of a State or Territory.” Equal Opportunity Act 2010 [25] By lodging a complaint with the VEOHRC, Ms AM brought a dispute to the VEOHRC in accordance with section 113 of the Equal Opportunity Act 2010 (Vic) (EO Act). The VEOHRC provides a dispute resolution process to deal with complaints relating to the alleged contravention of the EO Act in accordance with the “Principles of dispute resolution offered by the Commission” in section 112 of the EO Act. [26] If a dispute remains unresolved following VEOHRC’s dispute resolution procedure, a person may make a further application to the Victorian Civil and Administrative Tribunal (VCAT) in respect of an alleged contravention of the EO Act.3 [27] It is uncontroversial that a complaint under section 113 of the EO Act may be a complaint under section 732 if it is in relation to a dismissal. Submissions -- 4 of 8 -- [2026] FWC 1511 5 Ms AM’s Submissions [28] Ms AM contends that the VEOHRC complaint is not a complaint envisaged by section 732 of FW Act, and therefore section 725 does not bar her general protections application. [29] In this regard, Ms AM contends: • The VEOHRC complaint was for a voluntary confidential conciliation process only, and is not “an adjudicative track prosecuting dismissal in parallel with the Commission”.4 • Ms AM expressly withdrew any aspect that could conceivably be characterised as related to dismissal, including any remedy relating to the alleged dismissal. • Ms AM has now fully withdrawn her VEOHRC complaint by email dated 29 March 2026, following an unsuccessful conciliation. • Given the above three points, there is no risk of “double dipping” through multiple applications, so section 725 has no role to play. [30] In addition, Ms AM contends the VEOHRC complaint is not in relation to dismissal. In this regard Ms AM argues that the VEOHRC complaint is directed to Victorian discrimination law issues arising during employment and the immediately related handling of these issues. The complaint does not relate to dismissal because Ms AM contends she had not been dismissed at the time of her filing. This is supported by the fact that in her original complaint email, she defines her employment period as “30 June 2025 to date”, highlighting that Ms AM was still employed at the time she made the complaint. [31] Ms AM objects to DJCS relying on the Case Outline for VEOHRC Conciliation document to establish that the complaint is related to dismissal. Ms AM submits this document was provided on a without prejudice basis, and section 117 of the EO Act does not allow the use of such a document in other proceedings. To the extent that DJCS are allowed to rely on Case Outline for VEOHRC Conciliation, this is not the complaint Ms AM made on 2 November 2026, but in effect, a second complaint made after the filing of the general protections claim. [32] Ms AM claims that her case can be distinguished from Dixon & Minhas v United Workers’ Union [2024] FWCFB 442 (Minhas v UWU) on the basis that the termination is a “new and distinct subject matter, not raised in the earlier complaint.” DJCS Submissions [33] DJCS submits that pursuant to section 725 of the FW Act, the effect of the VEOHRC complaint is that the general protections application is incompetent and must be dismissed. DJCS states that the application is related to dismissal, as the subject matter of the dispute relates to the cessation of the Applicant’s employment on 31 October 2025. DJCS relies on the Case Outline for VEOHRC Conciliation document which they were provided by VEOHRC, and VEOHRC identified as the complaint. [34] DJCS objects to Ms AM’s claims that because she has withdrawn elements of the complaint or closed the file, section 725 does not apply. DJCS relies on Minas v UWU to argue that the relevant test time is at the time of the filing of the general protections application. -- 5 of 8 -- [2026] FWC 1511 6 [35] Any withdrawal or subsequent amendment to the VEOHRC complaint cannot avoid the operation of section 725 of the FW Act and save the general protections application. This is because section 725 is not concerned with what happens after a prohibited second application is lodged, but rather it is concerned with the state of affairs when the second application is made. In order for the Applicant to not have triggered section 725 of the FW Act, the Applicant would have needed to have withdrawn or amended the VEOHRC complaint before filing the FWC Application. [36] DJCS objects to Ms AM’s argument that the Case Outline for VEOHRC Conciliation document should not form part of the proceedings – the Case Outline for VEOHRC Conciliation document was the document identified by VEOHRC as the complaint (DJCS had not seen the original complaint email until this proceeding). It would undermine the purpose of section 725 if a party was unable to raise a complaint because the matter is part of a dispute resolution process. The document is properly before the Commission and important for consideration. Consideration [37] Ms AM argued that the VEOHRC process is a confidential dispute resolution process that should not bar general protection proceedings in the Commission. However, it is uncontentious that a complaint pursuant to section 113 of the EO Act will be a complaint for the purposes of section 732 if it is in relation to a dismissal. A number of previous decisions in the Commission have recognised this.5 [38] In addition, I note that whilst VEOHRC may provide a statutory based dispute resolution process in relation to Ms AM’s complaint, if the dispute is not resolved Ms AM is able to pursue a further application to VCAT in respect of an alleged contravention of the EO Act.6 [39] The key matter before me is whether Ms AM’s VEOHRC complaint was in relation to dismissal. [40] The Full Bench in Minhas v UWU at [20-22] summarised a number of key Commission and Court decisions that considered the phrase “in relation to the dismissal”. [41] In summary, the Full Bench highlighted that: • The phrase has been interpreted to have a generally wide import. • There must be a relevant relationship between the complaint and the dismissal. • It does not require that the complaint exclusively or predominantly concerns dismissal. • The relationship between the complaint and the dismissal must not be tenuous or remote. [42] I find that Ms AM’s complaint of 2 November 2025 directly concerns matters relating to the alleged dismissal. This includes: • Events between 24 October and 31 October 2025 leading up to and directly relevant to Ms AM’s alleged dismissal; • Matters concerning whether Ms AM could perform the inherent requirements of the role; -- 6 of 8 -- [2026] FWC 1511 7 • The events leading up to and including Ms AM tendering a resignation, and the effect of that resignation; • The events leading up to and including Ms AM signing a settlement agreement, and the effect of that settlement agreement; and • Ms AM’s withdrawal of the resignation and the settlement agreement, and the effect of the withdrawal. [43] All these matters are directly related to the alleged dismissal and would form an essential part of any general protections application relating to Ms AM’s alleged dismissal. [44] I do not accept Ms AM’s argument that she made the complaint when she was still employed and therefore the complaint did not relate to the dismissal. An application made before a termination may still count as an application in relation to dismissal under section 725. For example, in Minhas v UWU the Full Bench found seeking permanent injunctive relief against a dismissal would be considered “in relation to” a subsequent dismissal.7 In this case, even if I accept Ms AM’s date of dismissal being after she tendered her resignation, the matters outlined in the complaint remain the fundamental background to the alleged dismissal. The link between the complaint and the alleged dismissal is not tenuous or remote. Rather, it is a clear and fundamental relationship between the matters in the complaint and the alleged dismissal. [45] Ms AM further contended that her complaint before VEOHRC could not be seen as a complaint in relation to her alleged dismissal because she subsequently withdrew anything that could conceivably be characterised as related to dismissal, and following an unsuccessful conciliation before VEOHRC she fully withdrew her complaint from VEOHRC. [46] As the Full Bench in Minhas v UWU confirmed, the relevant test time is the time of the filing of the second application.8 In this matter, the relevant test time was 24 November 2025 when Ms AM made a general protection’s application to the Commission. On 24 November 2025, the complaint to VEOHRC had not been withdrawn or failed for want of jurisdiction. Subsequent amendments to the complaint, or even a subsequent withdrawal of the complaint, does not change the fact that at 24 November 2025 the general protections application was prohibited pursuant to section 725. [47] For completeness I note that as I have found that the complaint of 2 November 2025 relates to dismissal, I have not needed to consider whether the Case Outline for VEOHRC Conciliation document should be allowed in evidence and have not considered the content of this document in this determination. However, I note that had I needed to consider this matter, it is likely I would have found that DJCS could rely on communication from VEOHRC outlining the scope of the complaint as evidence. [48] I further note that since I reserved this decision, Ms AM has sent further correspondence to my Chambers regarding DJCS advertising a role for a senior legal policy officer. This is not an issue that bears on my finding that Ms AM is barred from bringing this general protections application because of multiple actions. Conclusion [49] Pursuant to sections 725, 727 and 732 of the FW Act, Ms AM was barred from bringing a section 365 general protections application because she had already filed a complaint in VEOHRC in relation to her alleged dismissal. At the time of filing the general protections -- 7 of 8 -- [2026] FWC 1511 8 application, the VEOHRC complaint had not be withdrawn or failed for want of jurisdiction. Accordingly, Ms AM’s general protection application is dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer < PR799119> 1 The Applicant sought that her name remains confidential on the basis of safety concerns unrelated to her previous employment. The Respondent did not object to this approach. I am of the view there may be legitimate concerns and therefore refer to her as AM throughout this decision. 2 Email from Ms AM to VEOHRC dated 2 November 2025. 3 Section 122 Equal Opportunity Act 2010 (Vic). 4 AM submissions dated 23 February 2026 at [12]. 5 See for example Du v University of Ballarat [2011] FWAFB 5225. 6 Section 122 Equal Opportunity Act 2010 (Vic). 7 Dixon & Minhas v United Workers’ Union [2024] FWCFB 422 at [23]. 8 Ibid at [28]. -- 8 of 8 --