The Western Australian Industrial Relations Commission

The applicant filed an unfair dismissal application with the Commission after his employment with the respondent was terminated in August 2025. The termination occurred following allegations that the applicant had engaged in aggressive and unacceptable behaviour towards his supervisor, in breach of the respondent’s code of conduct. The matter proceeded to conciliation in October 2025 but did not resolve. It was then listed for directions in November 2025. The applicant did not attend, and orders were made requiring him to file outlines of witness evidence and supporting documents by January 2026 in preparation for a final hearing. 

Senior Commissioner Cosentino considered the Commission’s power under s 27(1)(a) of the Industrial Relations Act 1979 (WA) to dismiss proceedings, noting that the discretion is exercised sparingly. The Senior Commissioner observed that it is the applicant’s responsibility to prosecute an unfair dismissal claim expeditiously, and that prolonged inaction and/or non-compliance with orders may justify dismissal for want of prosecution. The proceedings remained ongoing for about five months from September 2025, and, during that time, the applicant repeatedly sought adjournments, failed to attend the November 2025 directions hearing, and did not comply with directions to file outlines of witness evidence and supporting documents by January 2026. The applicant’s statutory declaration did not adequately explain the non-compliance, and the claim remained insufficiently developed such that it was unclear what case the respondent was required to meet. 

The Senior Commissioner concluded that the cumulative effect of the applicant’s inaction and non-compliance had caused prejudice to the respondent and created a substantial risk that a fair hearing could not occur. In reaching that conclusion, the Senior Commissioner considered the overall delay, the absence of an adequate explanation, prejudice to the respondent, and the limited hardship to the applicant (including that the applicant had obtained alternative employment and that the materials filed did not disclose an arguable case). The Commission was also satisfied the applicant had been given notice and an opportunity to be heard through the show cause process. The application was therefore dismissed. 

The decision can be read here.    

The applicant applied to the Commission under s 44 of the Industrial Relations Act 1979 (WA) seeking a determination of an industrial dispute concerning the respondent’s decision to cease granting paid sick leave to one of the applicant’s members, a non-commissioned police officer. The member commenced paid sick leave in October 2022 and, after periods of attempted graduated return to work and further incapacity, the respondent decided in February 2024 to cease paid sick leave for three months. Paid sick leave was reinstated in April 2024 when the respondent commenced a medical retirement process, leaving an intervening period during which the member was on unpaid sick leave. 

Commissioner Walkington addressed the respondent’s preliminary objection that the application contravened a “no further claims” clause in the applicable industrial agreement, which operated during the relevant period during the member’s sick leave. Although the applicant framed the matter as a review of the exercise of discretion to grant paid sick leave under the relevant regulatory and agreement provisions, the Commissioner found that the relief sought would, in substance, prescribe criteria for the future exercise of that discretion and thereby materially vary the agreed terms and conditions. Having regard to authority on the scope of “further claims” clauses and the public interest in holding parties to their industrial bargains, Commissioner Walkington concluded it would be inconsistent with equity, good conscience, and the objects of the legislation for the Commission to entertain the claim. In light of that conclusion, it was unnecessary to determine the industrial fairness of the respondent’s decision or the Commission’s power to grant the substantive relief sought. 

The Commissioner held that the application was pursued in contravention of the no further claims clause and should be dismissed in the public interest. In light of that conclusion, it was unnecessary to determine whether the respondent’s decision to cease paid sick leave was industrially unfair on the merits, or whether the Commission otherwise had power to grant the specific relief sought. Accordingly, the application was dismissed. 

The decision can be read here.    

In April 2024, the applicant applied to the Commission under s 44 of the Industrial Relations Act 1979 (WA) about a dispute concerning a member’s entitlement to paid sick leave. The dispute arose after the respondent decided in March 2024 to stop granting paid sick leave for three months to a police officer member. The officer was incapacitated by post-traumatic stress disorder and had been absent on sick leave since December 2023. The respondent revoked the sick leave on the basis that the officer had not shown sufficient engagement with, and progress in, the respondents return-to-work program. After an unsuccessful compulsory conference, the matter was referred for hearing and determination. 

The respondent first argued that the application could not be heard because it was a further claim barred by a no further claims clause in the applicable industrial agreement, which was in force at the time. The applicant said it was not seeking to change the sick leave terms; rather, it asked the Commission to review how the respondent exercised its discretion. The Commission found that, in practical effect, the orders sought by the applicant would go beyond reviewing a single decision. Instead, they would effectively prescribe criteria governing how the respondent must exercise its discretion to grant paid sick leave, thereby materially altering the operation of the relevant clause and improving upon conditions contained in the agreement. The Commission held that it would not be consistent with equity, good conscience, or the statutory scheme to deal with a claim that would effectively add to the parties’ agreed bargain while the agreement remained in force. 

Commissioner Walkington found the applicants claim was prohibited by the no further claims clause and that it was in the public interest to dismiss the proceedings. In light of that conclusion, it was unnecessary to decide whether the respondents March 2024 decision was industrially fair on its merits, or to consider the respondents additional objections (including as to power and jurisdiction). Accordingly, the application was dismissed. 

The decision can be read here. 

The applicant lodged an unfair dismissal application with the Commission after resigning from his employment with the respondent in October 2024. The application was filed in February 2025, which was outside the 28-day period prescribed by the Industrial Relations Act 1979 (WA). However, the applicant alleged that his resignation was forced by the respondent’s conduct and therefore constituted an unfair dismissal. He sought compensation for loss of employment said to be caused by the termination. 

Commissioner Walkington considered whether it would be unfair not to accept and out of time application, applying the principles set out in precedent case law, including the length and explanation of the delay, any steps taken to contest the termination, prejudice to the respondent, fairness to others in a like position, and where necessary the apparent merits of the application.  

The Commissioner found the delay for lodging the application was significant and not satisfactorily explained. The reasons advanced by the applicant, including health issues, an overseas holiday, and time spent collating material were not accepted as explaining why the application could not have been filed within time or within a substantially shorter period. The Commissioner also found the applicant had not taken sufficient alternative steps after the resignation to contest the termination. 

The Commissioner also found prejudice to the respondent arising from the applicant’s out-of-time filing, including that the applicant would thereby seek to access a compensation remedy available under legislative changes commencing in January 2025, which was not available to comparable applicants who filed within time under the previous public sector appeal framework. In those circumstances and having regard to the absence of a satisfactory explanation for delay, the lack of relevant steps taken to contest the termination, and fairness to others, Commissioner Walkington declined to accept the application out of time. Accordingly, the application was dismissed. 

The decision can be read here.