VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H102/2020	
CATCHWORDS	
Application for reinstatement in order to enforce Terms of Settlement reached in a proceeding brought under the Equal Opportunity Act 2010 – whether Terms of Settlement were breached – whether orders should be made under section 93 of the Victorian Civil and Administrative Tribunal Act 1998 – Terms of Settlement not breached	

APPLICANT	Rajdeep Kaur	
FIRST RESPONDENT 	Davies Bakery Pty Ltd	
SECOND RESPONDENT	Nhat Nguyen	
WHERE HELD	Melbourne via teleconference 	
BEFORE	Deputy President G. Nihill 	
HEARING TYPE	Reinstatement hearing	
DATE OF HEARING	5 October 2021	
DATE OF ORDER AND WRITTEN REASONS	17 November 2021	
CITATION	Kaur v Davies Bakery Pty Ltd (Human Rights) [2021] VCAT 1385	

Order
The application for reinstatement of the proceeding is dismissed. 

G. Nihill
Deputy President			

APPEARANCES:		
For Applicant	In person 	
For Respondents	Ms B. Relf, representative	

Reasons
Background
1	On 17 March 2020, the Applicant Rajdeep Kaur applied to the Victorian Civil and Administrative Tribunal (VCAT) claiming that she had been discriminated against in her employment on the basis of her pregnancy. On 9 November 2020, the parties participated in a compulsory conference. As a result of the discussions at the compulsory conference and over subsequent days and weeks, the parties reached an agreement that was recorded in Terms of Settlement signed by the Applicant on 24 November 2020 and the Respondents on 1 December 2020. 
2	The Tribunal Member who conducted the compulsory conference made orders on 9 November 2020, apparently anticipating this settlement, and indicating that if either of the parties wished to proceed, they must notify VCAT in writing on or before 7 December 2020. Otherwise on that date, the application would be struck out. 
3	On 10 April 2021, Ms Kaur wrote to VCAT asking for the case to be reinstated, on the grounds that the Terms of Settlement had not been complied with. 
What orders could VCAT make?
4	When a proceeding is dismissed, it is brought to an end. It cannot be reinstated. When it is struck out, this allows for the possibility of it being reinstated. This was confirmed in Herald & Weekly Times Pty Ltd v Victoria by the Court of Appeal, who stated that:
In our view, the Tribunal does have the implied power, in appropriate circumstances, to reinstate a proceeding that it has struck out. 
5	Section 93(1) of the Victorian Civil and Administrative Tribunal Act 1998(Vic) (VCAT Act) provides that, where parties agree to settle a proceeding, VCAT may make any orders necessary to give effect to the settlement. When deciding, as in this case, whether to reinstate the proceeding, it is necessary to consider the relevant clause of the Terms of Settlement and whether or not it was breached.
The Terms of Settlement
6	The Terms of Settlement were signed on the basis that the Respondents denied the allegations of discrimination, but the parties agreed to settle the matter. There were three elements of the agreement. A sum of money was to be paid to the Applicant. This was paid and is not at issue. The First Respondent agreed to offer the Applicant employment on a casual basis dependent on the needs of the business. This was not at issue. Finally, the agreement reached was that:
If a suitable full-time employment position arises, the Applicant will be considered by Davies Bakery for the position.
7	It was about this clause that the Applicant applied for a reinstatement.
Were the Terms of Settlement complied with?
8	The Applicant, Ms Kaur, said that after the settlement she continued to work casually for the Respondents. In March 2021, she went in to work to pick up shoes from the change room and saw on the noticeboard an internal advertisement for a vacancy she had not been told about. The vacancy had closed. Ms Kaur said that given her impeccable work history and the fact that the position was in line with her experience and skills, she should have been told about it. The Respondents had signed an agreement that she would be considered for suitable full-time employment, and this was a highly suitable role for her. 
9	Ms Kaur said that in February 2021 her husband had required emergency surgery, and the family faced considerable financial pressure. The full-time role would have made a big difference to her, and the Respondents should have contacted her to tell her about it. She was a loyal and hardworking employee who was suitably trained and experienced for that role. 
10	Ms Kaur also described events that occurred later in 2021. Two further roles were advertised, and she was told about them. She did apply, although they were not as suited to her experience as the one advertised in March 2021. By that stage she had applied to VCAT for her application to be reinstated. She was called for an interview for one of the roles, but was left waiting for 45 minutes. On a later date the interview took place, and after the interview she was called into the HR Manager’s office, where there was an uncomfortable interaction about her application for reinstatement. She said that the HR Manager was rude and disrespectful. 
11	Bernie Relf, HR Manager, gave evidence and made submissions on behalf of the Respondents. She said that there had been no breach of the Terms of Settlement. Ms Kaur had been considered for the role that was advertised in March 2021, and for the roles that were subsequently advertised. 
12	Ms Relf said that through January, February and March of 2021 Ms Kaur regularly emailed to advise of her availability for rostering purposes. Ms Relf said that the Respondents were attentive to ensuring that they offered Ms Kaur suitable casual shifts, in accordance with the Terms of Settlement. On 7 January 2021, Ms Kaur advised that she was available for Monday or Tuesday afternoons, and Sunday mornings. On 22 January 2021, Ms Kaur advised that she could work two days per week, on Monday, Tuesday or Wednesday. On 28 January 2021, Ms Kaur emailed that she could work Monday, Tuesday and Wednesday afternoons. On 28 February 2021, Ms Kaur emailed to explain that her husband was unwell and that she was therefore unavailable for work. On 17 March 2021. Ms Kaur advised that she was available for Monday, Tuesday, Thursday and Friday morning shifts. 
13	On 22 March 2021, an internal advertisement was placed on site noticeboards and lunchrooms for a full-time packing team member. The role was full-time, Wednesday to Saturday from 3.00am to 11.00am each of those days. Ms Relf said that it was and had always been the practice to place these kinds of internal advertisements on the noticeboards in this way, although since that time the Respondents had begun emailing all staff as well as using the noticeboards. Ms Relf said that all staff knew that this was the practice, that they should look on noticeboards for job advertisements. She said that she did not have access to the roster and did not keep track of who was working on what days, so would not have known whether or not any particular person would or would not be in at work on the days when the advertisement was up on the noticeboard. 
14	Ms Relf said that once the advertisement period closed, she and the Bakery Manufacturing Manager reviewed all the applications. She said that they also discussed all their casual employees who had not applied, to see if there was anyone suitable who might be approached. She said, under oath, that she and the Bakery Manufacturing Manager definitely considered Ms Kaur. They discussed her suitability, and her availability. They noted, said Ms Relf, that Ms Kaur had emailed only five days earlier than the date the advertisement was posted, saying that she was only available for certain days and times, and those days and times did not match the requirements of the job, which included that candidates must be available to work from 3.00am to 11.00am Wednesday to Sunday. 
15	Ms Kaur said, in response to this, that she had emailed about her availability because of her husband’s health situation. This did not change the obligation on the Respondents to inform her about the advertised role. From her point of view a full-time role was a different situation from casual work. She may have made choices about asking other relatives to help with care for the baby if it meant she had full-time work. She was experienced in the role that was advertised and would have applied if she had known about it. She said that it was not correct to say that the Respondents had considered her as a candidate for the role – how could they do so, she asked, if she did not even know about the role.
16	Ms Relf said, with respect to Ms Kaur’s submissions about the later applications and interviews that when Ms Kaur came for the first interview, there was an unfortunate delay for which the Respondents apologised. A new date was set. After the second interview, which was an interview for two different roles, Ms Relf asked Ms Kaur to come to see her. This was because it had just come to Ms Relf’s attention that Ms Kaur had applied to VCAT to reinstate the discrimination application. She said that she wanted Ms Kaur to explain in what way the Respondents had breached the Terms of Settlement when, from Ms Relf’s point of view, the Respondents had been attentive to meeting those Terms. Her perspective was that the discussion was only confrontational because of Ms Kaur, who was agitated and spoke loudly. 
17	Ms Relf reiterated that, since March 2021 all casual employees have been emailed about advertised roles. She said that, for example, the Respondents had recently sent an email about a role for which Ms Kaur had experience but she did not apply.
Discussion and conclusion
18	I restate the relevant clause of the Terms of Settlement, and underline the key word:
If a suitable full-time employment position arises, the Applicant will be considered by Davies Bakery for the position.
19	The agreement was not that Ms Kaur would be offered suitable employment, nor that any special arrangements would be made to notify her about them. I understand Ms Kaur’s disappointment and frustration that she did not realise the job was on offer, and I accept her evidence that she would have applied if she had known. I accept what she said: that she had a good employment record and had suitable training for the role. 
20	Having said that, however, I accept the sworn evidence of Ms Relf that the Respondents did consider Ms Kaur for the role. It may well have been better if the advertisement had been sent to all casual employees, as became the practice after March 2021. It was not the practice before then, however, and there was no evidence to suggest that anyone had a reasonable expectation that they would receive an email when a job became vacant. There is nothing in the Terms of Settlement to indicate that the Respondents agreed to make particular arrangements for Ms Kaur, only that they would consider her for any suitable role. I accept the evidence that Ms Relf and the Bakery Manufacturing Manager considered Ms Kaur for the role. 
21	The events that took place at the time of the subsequent interviews were distressing no doubt, but have no direct bearing on this application. Ms Kaur knew about the roles, and applied, and was invited to interview. It is unfortunate that she waited for 45 minutes for the first interview she attended. The interview did eventually take place. The interaction after the interview between Ms Kaur and Ms Relf about the application to VCAT was also unfortunate, but is not directly relevant to the decision I have to make. 
22	In these circumstances it is not appropriate for me to make an order under section 93(1) of the VCAT Act and so I dismiss the application for reinstatement. 

G. Nihill
Deputy President