UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Nikolai Gordevich

APPLICANT

-v-

Indie Education

RESPONDENT

CORAM Commissioner C Tsang

DATE Monday, 15 April 2024

FILE NO. U 19 OF 2024

CITATION NO. 2024 WAIRC 00157

Result Application dismissed

Representation

Applicant Mr N Gordevich

Respondent Mr J Clarke

Order

WHEREAS on 19 February 2024, the applicant filed a Form 2 – Unfair Dismissal Application, alleging unfair dismissal from his role as a High School teacher beginning on 29 January 2024 and ending on 8 February 2024;

AND WHEREAS on 21 March 2024, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application, raising jurisdictional objections, asserting that the respondent falls under the Fair Work Act 2009 (Cth) as a national system employer, and disputing the nature of the applicant’s departure, contending it was a voluntary resignation rather than a dismissal;

AND WHEREAS on 22 March 2024, the Commission wrote to the applicant, seeking clarification on whether he acknowledged the respondent’s status as a national system employer by 28 March 2024;

AND WHEREAS the applicant failed to respond by 28 March 2024, prompting the Commission to issue a subsequent request on 2 April 2024 for confirmation by 5 April 2024;

AND WHEREAS on 3 April 2024, the applicant responded to the Commission expressing uncertainty regarding the respondent’s status and raising concerns about the burden of proof;

AND WHEREAS on 4 April 2024, the Commission wrote to the applicant addressing his queries, explaining the jurisdictional considerations, clarifying the burden of proof, and requesting confirmation of his stance by 5 April 2024;

AND WHEREAS on 8 April 2024, the applicant notified the Commission of his decision not to pursue application U 19 of 2024, seeking a refund of the filing fee and requesting the transfer of the matter to the Fair Work Commission;

AND WHEREAS on 8 April 2024, the Commission acknowledged the applicant’s decision, responded to his requests, and granted until 9 April 2024 for the discontinuation of proceedings, warning of the possible dismissal of proceedings for want of jurisdiction and/or want of prosecution if not actioned;

AND WHEREAS the applicant failed to discontinue the proceedings by 9 April 2024, prompting the Commission to write to the applicant on 11 April 2024, extending the time for the proceedings to be discontinued to 12 April 2024, and informing the applicant that if the proceedings were not discontinued by 12 April 2024 that the Commission will proceed to issue an order dismissing the proceedings on grounds of both want of jurisdiction and want of prosecution;

AND WHEREAS the applicant did not discontinue the proceedings as requested;

NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA), hereby orders –

THAT application U 19 of 2024 is dismissed on grounds of want of jurisdiction and want of prosecution.

Commissioner C Tsang