By Jamie Salter
A Berwick restaurant ex-worker has been ordered by Victorian Civil and Administrative Tribunal (VCAT) to provide reasons why an ongoing four-year workplace compensation action shouldn’t be dismissed.
Shanikas Berwick has been taken to VCAT after allegedly failing to grant an employee’s sick leave entitlement but the restaurant has moved to have the action dismissed, claiming it was misconceived, lacking in substance and vexatious.
Gilles Edwards claims he was discriminated against in breach of the Equal Opportunity Act 2010 (EO Act) while he was employed by Shanikas Berwick on the basis of his marital status.
Mr Edwards said he was forced to work when he was unwell and that Shanikas Berwick allegedly refused to grant him sick leave with a medical certificate.
According to the applicant’s mother and representative, Mr Edwards was told that “he is single, he doesn’t have any responsibilities as other staff are married with kids, therefore should work”.
The matter has been unresolved at VCAT since 2018 and the grievance has been aired at Fair Work, Victorian Human Rights and Equal Opportunity Commission, the Supreme Court and the County Court.
Shanikas Berwick had previously applied for the application to be dismissed in 2019 on the grounds that the application was “misconceived and lacking in substance”.
The restaurant said the claim and damages were not specific enough, to the extent that they could not prepare to defend the claim.
At a directions hearing in 2019, VCAT senior member Bernadette Steele asked how much the applicant was seeking, and was told that it was in the range of $2.5 million.
Since then, the claim has been revised down to $20,000.
“The claim for $20,000 might be inferred to be for medical treatment, or damage to health. Again, that is not clear from the particulars of claim,” VCAT senior member Susan Burdon-Smith said.
Mr Edwards was told he must include additional information regarding the loss and damage suffered and how it related to the alleged breaches of the EO Act.
Ms Burdon-Smith said Mr Edwards’ failure to comply with Tribunal orders had disadvantaged Shanikas Berwick.
“At this point in the proceedings, the respondent (Shanikas Berwick) has not been provided with a clear and unambiguous statement of the cause of action, the events and circumstances sought to be relied upon to demonstrate the cause of action, or the amount of damages sought, or any other remedy sought and reasons for them,“ Ms Burdon-Smith said.
“As a consequence, the respondent has incurred costs, the respondent (Shanikas Berwick) has not had all of the information that they might be entitled to…to prepare a defence to the claims.
“The value and weight of evidence is a matter for the Tribunal at hearing, and not for me to decide at this stage.“
Mr Edwards has been given until Monday 1 August to file arguments on why VCAT shouldn’t dismiss the action.
