APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 15 JANUARY 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00629

CORAM : PUBLIC SERVICE APPEAL BOARD

  Commissioner T B WalkingtoN - CHAIR

  MS B CONWAY - BOARD MEMBER

  MS R BARROW - BOARD MEMBER

DELIVERED : monday, 13 december 2021

FILE NO. : PSAB 8 OF 2021

Appellant

AND

Lotterywest

Respondent

CatchWords : Application dismissed for want of prosecution - Explanation for the delay - Hardship to the appellant if the application is dismissed - Prejudice to the respondent - Failure to appear

Legislation :  Industrial Relations Act 1979 (WA)
Industrial Relations Commission Regulations 2005 (WA)

Result : Appeal dismissed

Representation:

Appellant : No appearance

Respondent : Mr S Pack (of counsel)

Case(s) referred to in reasons:

The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162

Reasons for Decision

1         The appellant referred the respondent’s decision to dismiss her to the Public Service Appeal Board (Board) on 18 February 2021.  The date of the decision to terminate her employment was notified to the appellant on 15 January 2021. The referral was not accepted by Registry until 2 March 2021 because the initial referral submitted by the appellant was not compliant with the requirements of the Industrial Relations Commission Regulations 2005 (WA) (IR Regulations).

2         On 22 March 2021 the respondent provided a response to the Board stating the appeal was not commenced within 21 days of the decision to terminate the appellant’s employment and as the appeal is without merit it opposed the Board granting an extension of time to the appellant.

3         Subsequently on 12 May 2021 the respondent applied to the Board pursuant to s 27(1)(a)(i) and (iv) of the Industrial Relations Act 1979 (WA) (IR Act) to dismiss the appeal because the parties had reached a binding settlement agreement.

4         The respondent submitted that the Board may refrain from further hearing or determining a matter if it is satisfied that further proceedings are not necessary or desirable in the public interest or that for any other reason the hearing of the matter should be discontinued.

5         In this matter, the respondent asserted the Board should refrain from further hearing or determining this matter because:

(a) Further proceedings are not necessary because the appellant no longer seeks a remedy of reinstatement and a binding settlement agreement has been reached by the parties;

(b) Further proceedings are not desirable in the public interest in circumstances where the appellant no longer seeks a remedy of reinstatement and/or parties have reached a binding settlement agreement, notwithstanding any dispute between one party and their representative over the circumstances by which that binding settlement agreement has come into force; and/or

(c) The appellant no longer seeks a remedy of reinstatement or employment in the public sector and/or the binding settlement agreement reached between the parties is “any other reason why the hearing of this matter should not continue”.

6         The appellant opposed the respondent’s interlocutory application on the basis that her representative had communicated her agreement to the terms of settlement to the respondent in circumstances where her representative had not fully informed of the terms and she had not authorised her representative to consent to the terms of the settlement.

7         A hearing was scheduled to hear and determine the respondent’s interlocutory application for an order to dismiss the appeal on the basis that the parties have reached a binding settlement agreement.  The hearing scheduled for 28 July 2021 was notified to the parties on 18 May 2021 in accordance with their availability.

8         On the morning of the hearing the appellant emailed Registry to advise that she was unwell and requested the hearing be postponed to a later date when she will be able to attend.  The hearing was vacated.

9         The appellant did not make any further contact with the Board to advise when she had recovered and would be able to attend.

10      On 26 August 2021 the Board sought the appellant’s views on progressing her appeal.  On 2 September 2021 the appellant confirmed she wished to proceed.

11      The hearing was re-listed for 7 October 2021.  Notices were sent to the parties on 3 September 2021.

12      The appellant did not appear at the hearing.  The Board determined that the appellant ought to show cause as to why her appeal ought not be dismissed for want of prosecution.  The parties were advised of the Board’s decision by email.

13      The show cause hearing was listed for 24 November 2021.  The parties were notified of the hearing on 26 October 2021.

The Principles

The Commission can dismiss a matter under s 27(1)(a) of the IR Act:

27. Powers of Commission

(1)  Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

14      Section 80L(1) of the IR Act provides that s 27 applies to and in relation to the exercise of the Board’s jurisdiction.

15      In The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162, the Full Bench set out the principles to consider when deciding whether to dismiss an application for want of prosecution.  They include the length of the delay, the explanation for the delay, the hardship to the applicant if the application is dismissed, the prejudice to the respondent if the action is allowed to proceed, and the conduct of the respondent in the litigation.

Consideration

16      The appellant has not appeared at the show cause hearing.  The Board has the power to proceed to hear and determine the matter in the absence of any party who has been duly served with notice of the proceedings: s 27(1)(d) of the IR Act.  Service on the appellant in this matter may be effected by leaving the notice at, or sending it by pre-paid post to, the appellant’s usual or last known place of abode: reg 24(2)(d) of the IR Regulations.  Alternatively, service can be effected on the appellant by sending the notice of hearing as an attachment to an email sent to the email address that the appellant has provided to the Board: reg 25(3) of the IR Regulations.

17      In circumstances where the appellant was emailed the notice of hearing to the email address the appellant provided, the Board is satisfied that the appellant has been duly served with notice of these proceedings and the Board may proceed with the hearing in her absence in the circumstances.

18      The Board is satisfied that the purpose of the hearing was explained in writing to the appellant and if she did not appear PSAB 8 of 2021 would be dismissed. 

19      In the Board’s view the appellant has failed to provide an explanation for the delay in progressing her appeal inevitability caused by her failure to attend the show cause hearing.  In the appellant’s absence the Board is unable to conclude the appellant will suffer hardship.  The appellant last communicated with the Board on 2 September 2021.  In the Board’s view the appellant’s failure to attend hearings at the direction of the Board and the delay in progressing this matter will prejudice the respondent if allowed to continue.

20      For these reasons the Board will dismiss the appeal.