Vitchev v Sydney Local Health District (State of NSW, Ministry of Health) [2018] NSWIRComm 1046

Industrial Relations Commission New South Wales Medium Neutral Citation: Vitchev v Sydney Local Health District (State of NSW, Ministry of Health) [2018] NSWIRComm 1046 Hearing dates: 1 August 2018 Date of orders: 01 August 2018 Decision date: 01 August 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Order sought in the Respondent's Notice of Motion that Application for Relief be wholly dismissed is granted. Catchwords: UNFAIR DISMISSAL – effect of availability of other remedies Legislation Cited: Anti-Discrimination Act 1977 Industrial Relations Act 1996 Category: Principal judgment Parties: Ivan Vitchev (Applicant)

Sydney Local Health District (State of NSW, Ministry of Health) (Respondent) Representation: The Applicant represented himself with the assistance of Ms Dimova-Nikols, Interpreter

Solicitors: Mr D Gardner, Bartier Perry (Respondent) File Number(s): 2017/00287023

EX TEMPORE DECISION 1. The applicant in this matter, Mr Ivan Vitchev, was notified by correspondence dated 1 September 2017 from Dr Teresa Anderson, Chief Executive of the Sydney Local Health District, that his employment had been terminated as a result of an incident that had occurred involving a patient on 15 February 2017. 2. Mr Vitchev, on 21 September 2017, filed in the Office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal. That application came before Chief Commissioner Kite on a number of occasions in late 2017 and early 2018. 3. In addition, Mr Vitchev, on 11 September 2017, made a formal complaint under the Anti-Discrimination Act 1977 to the President of the Anti-Discrimination Board, in effect, alleging that the act of termination of his employment constituted unlawful discrimination. That complaint was ultimately declined by the President of the Anti-Discrimination Board. 4. On 29 November 2017, the respondent filed a Notice of Motion in the matter which sought, amongst other things, that the applicant's unfair dismissal application be dismissed pursuant to section 90 of the Industrial Relations Act 1996 ("the Act"). That Notice of Motion was supported by an affidavit sworn by the respondent's solicitor, Mr Darren Gardner, which canvassed the fact that a complaint had been made pursuant to another statute in another jurisdiction and that the subject matters of that complaint were essentially the same matters that arose in the unfair dismissal application. 5. Section 90 of the Act is in the following terms: 90 EFFECT OF AVAILABILITY OF OTHER REMEDIES The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. 1. The matter came on again before the Chief Commissioner on 15 March 2018, when it was explained to Mr Vitchev that he was unable to pursue, essentially, the same case in two different jurisdictions and he gave an undertaking on transcript to the Chief Commissioner that he would take no further steps in the Anti-Discrimination Board or in the New South Wales Civil and Administrative Tribunal. On the basis of that undertaking, the respondent did not press for the orders it sought in its Notice of Motion. 2. However, on 10 April 2018, Mr Vitchev made a formal complaint to the Australian Human Rights Commission, again raising the issue of the termination of his employment and alleging that his dismissal had been an act of unlawful discrimination against him pursuant to the terms of a number of Commonwealth statutes. I was advised by Mr Gardner that the complaint was declined by way of correspondence from the Senior Executive, Investigation and Conciliation Service of the Australian Human Rights Commission, dated 28 June 2018. 3. On 20 July 2018, the respondent filed a further Notice of Motion seeking, amongst other things, an order that the Commission is not able to determine Mr Vitchev's unfair dismissal application pursuant to section 90 of the Act. This Notice of Motion was again supported by an affidavit sworn by Mr Gardner. 4. The respondent's Notice of Motion was listed for hearing before me today, 1 August 2018. 5. After hearing the parties, I formed the view that the language of section 90 of the Act is clear and that this had been pointed out previously to Mr Vitchev. By making a formal complaint to the Australian Human Rights Commission, Mr Vitchev had commenced proceedings under a number of other Acts which provide redress to him in relation to his dismissal. Mr Vitchev did this after he had been clearly advised, on 15 March 2018, by the Chief Commissioner, that he could not proceed down the path of seeking redress in relation to the termination of his employment in another jurisdiction and, at the same time, maintain his unfair dismissal application before this Commission 6. I have no alternative but to dismiss Mr Vitchev's unfair dismissal application and I so order. John Murphy Commissioner