Tribunal confirms rejection of WorkSafe review: no law gave it power to hear the case (VCAT, 2026)

What happened

The applicant's employment with his former employer, Thomas Foods, ended on 26 March 2026. According to his own affidavit and an incident report he relied on, he was told at a meeting that day that his attitude towards a work colleague was unacceptable and that he was terminated, and he was asked to leave the building.

He reported matters to WorkSafe Victoria. By letter dated 17 April 2026, WorkSafe told him it had reviewed the information he gave its advisor team and that his matter did not meet the criteria for inspector intervention, so no further action was required. The letter gave three reasons: the incidents reported did not meet the definitions of a psychosocial hazard; the Fair Work Commission was the most appropriate agency for employment concerns including termination and unfair performance management; and there was not a current risk to health and safety that was not being controlled so far as was reasonably practicable. WorkSafe said it was closing his case, and it also gave him contact details for several 24-hour emergency services.

On 7 June 2026 he lodged an application at VCAT under section 129 of the Occupational Health and Safety Act 2004 (Vic) seeking review of WorkSafe's decision. VCAT's registry wrote to him in late August 2026 pointing out that the WorkSafe letter did not say the decision was reviewable or that he could apply to VCAT, and asked for more information. He replied that he relied on the OHS Act, and later pointed to item 4 of the table in section 127(2) and to section 75(4)(b). On 7 September 2026 a delegate of the principal registrar rejected the application under section 71 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) on the ground that VCAT had no jurisdiction to review it. The same day, he asked for that rejection to be reviewed.

The review was heard by video conference on 16 October 2026. He appeared for himself from his current workplace. There was no appearance for WorkSafe, because the application had not been accepted by VCAT or served on WorkSafe. Before the hearing he also sent VCAT an affidavit sworn on 16 July 2026, a freedom of information decision letter from WorkSafe dated 24 June 2026, and 14 pages of redacted documents he had obtained from WorkSafe under freedom of information.

What each side wanted

The applicant argued that WorkSafe's letter was a reviewable decision under the OHS Act, pointing to item 4 of the table in section 127(2), which covers a determination under section 75(4)(b) that there was reasonable cause for employees to be concerned for their health or safety, and to section 129, which lets an eligible person apply to VCAT for review of a reviewable decision. Asked at the hearing what he wanted if his application were accepted, he said he sought a formal letter of apology from WorkSafe and $4,000 in compensation for deterioration of his mental health; he confirmed he had not needed to seek psychological care. He also said he would like an apology from VCAT for rejecting his application. He did not identify any legislative basis for VCAT to order compensation or an apology. WorkSafe did not appear and made no argument, as the application had never been accepted or served on it.

What the tribunal decided

The Member confirmed the principal registrar's rejection of the application under section 71(5)(a) of the VCAT Act, which meant the application was not accepted. No money was ordered to be paid by anyone, and no apology was ordered.

The alternative open to the Member under section 71(5)(b) was to order the principal registrar to accept the application. That was not done.

Why the tribunal decided it that way

VCAT's power to review a government decision is not general. Section 48 of the VCAT Act means that power is only switched on when some other Act, called an enabling enactment, says a particular person may bring a particular decision to VCAT. The Member described VCAT as a creature of statute with no inherent power to resolve disputes outside what Parliament has expressly given it.

The only pathway the applicant pointed to was item 4 of the table in section 127(2) of the OHS Act, which makes reviewable a determination under section 75(4)(b). The Member broke that down into four things that had to be present: a determination in writing, made by an inspector, that there was reasonable cause for employees to be concerned for their health or safety, where an employee did not work as a result of the issue arising. An inspector, for this purpose, is a person formally appointed under Part 9 of the OHS Act.

Only the first element was met. The WorkSafe letter was in writing, but it was signed off by 'WorkSafe Victoria', and the freedom of information material recorded that no inspection would be undertaken because the matter was the remit of Fair Work; a note said the caller was insistent on knowing who his investigator was, but did not say any investigator had been appointed. The Member was not satisfied any inspector had been appointed, so was not satisfied the letter's author could make a decision under section 75(4)(b). Nor did the letter determine that there was reasonable cause for concern; it said the opposite, that there was no current uncontrolled risk. And the Member found the applicant did not work after 26 March 2026 because his employment had been terminated, not because a health and safety issue needed resolving.

The Member therefore found the letter contained no reviewable decision of the listed type. It was no more than a notification from the regulator that it would not put resources into investigating, with a pointer to the Fair Work Commission and to emergency support services. Because there was no reviewable decision, the applicant was not a person entitled to make the application. The Member also noted that the application was lodged on 7 June 2026, well more than 14 days after the letter came to his notice, so even if it had been within jurisdiction, leave would have been needed for it to be accepted. VCAT could not make the orders he sought.

What this means if you are in a similar position

If you are in a similar position, this decision shows how narrow a tribunal's review power can be. A tribunal can only review a government or regulator decision where an Act names that kind of decision and says who may bring it. The decision also shows that a letter telling you an agency will not take your matter further is often not the same thing as a decision that can be reviewed, and that a tribunal will look at who actually made the document and what it actually determined, not just at the letterhead.

It also shows that the remedy has to exist in the Act. Here the tribunal had no power to order an apology or compensation, even if the application had been accepted. Time limits matter too: the application here was lodged more than 14 days after the letter came to the applicant's notice, which would have needed leave on its own. And where a complaint is really about how an employer treated you or about the end of your job, the body with power over that is often a different one, as the regulator's letter pointed out.

In this kind of dispute, most people start by putting the complaint to the agency in writing, setting out what happened, what they are asking for, and asking the agency to state what decision has been made and whether any review right applies. That written record is what a later review or external complaint is built on, and an application to a tribunal or an ombudsman is the step people take after it.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: Wijaya v WorkSafe Victoria [2026] VCAT 884 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.