UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00210

DELIVERED : THURSday, 3 APRIL 2025

FILE NO. : U 116 OF 2024

Applicant

AND

Shire of Menzies

Respondent

CatchWords : Application for stay or adjournment of proceedings pending finalisation of matter before the Supreme Court – Matters before the Commission and the Supreme Court are significantly interrelated –Whether maintenance of both proceedings is an abuse of process – Whether applicant approbates and reprobates in relation to Commission’s jurisdiction – Whether grant of stay is in public interest – Inappropriate for the Commission to proceed while matter before the Supreme Court – Stay granted    

Legislation : Industrial Relations Act 1979 (WA)
Local Government Act 1995 (WA)  

Result : Stay application granted

Representation:

Counsel:

Applicant : Mr D Coulter

Respondent : Mr C Beetham

Solicitors:

Applicant : Civic Legal

Respondent : Kennedys

Case(s) referred to in reasons:

Association of Professional Engineers Scientists & Managers Aust v Skilled Engineering Pty Ltd (1994) 54 IR 236

Commonwealth v Verwayen [1990] HCA 39; (1990) 95 ALR 321

Cooper v Darwin Rugby League Inc (1994) 1 IRCR 130

Dadey v Edith Cowan University (1996) 70 IR 295

De Pledge v Moulding Industries Pty Ltd [2004] WAIRC 11157; (2004) 84 WAIG 1195

Gilmore v Cecil Bros & Ors (1996) 76 WAIG 1184

Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 386 ALR 632

JMD v GJH [2012] WADC 124; (2012) 79 SR 259

Insurance Commission of Western Australia v Woodings as Liquidator of the Bell Group Ltd (In Liq) [No 2] [2017] WASC 372

Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130

L & W Developments Pty Ltd v Della [2003] NSWCA 140; (2003) 135 IR 118

Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 136 IR 156

Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454

Mohazab v Dick Smith Electronics (No. 2) Pty Ltd (1995) 62 IR 200

Moore v Inglis (1976) 9 ALR 509

Moylan v City of South Perth [2006] WASC 262; (2006) 157 IR 441

Patrick Jebb atf The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121

Portolesi v Fini Group Management Pty Ltd (1997) 77 WAIG 506

Scicluna v Brooks t/as Bayview Motel Esperance, WA [2016] WAIRC 00862; (2016) 96 WAIG 1475

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 71; (1992) 34 FCR 287

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1985) 65 WAIG 385

Thirteenth Corporation Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491

United Australia Ltd v Barclays Bank Ltd [1941] AC 1 30; [1940] 4 All ER 20

Reasons for Decision

1       The applicant, Glenda Teede commenced a referral of an unfair dismissal application in the Western Australian Industrial Relations Commission in which she seeks reinstatement to her position as Chief Executive Officer of the Shire of Menzies. She now asks the Commission to adjourn, postpone or stay her unfair dismissal application until other proceedings are determined (stay application).

2       In the form initiating Ms Teede’s unfair dismissal application says she was told she was dismissed on 17 October 2024 with her last day of employment also being 17 October 2024. In the form, Ms Teede flagged that she intended to apply to the Supreme Court of Western Australia for judicial review of the Shire’s decision to terminate her employment.

3       Since filing her unfair dismissal application, as foreshadowed, Ms Teede has now commenced proceedings in the Supreme Court of Western Australia in CIV 1202 of 2025 seeking judicial review of the Shire’s 17 October 2024 decision (judicial review proceedings).

4       In the judicial review proceedings Ms Teede seeks a writ of certiorari in relation to the Shire’s decision terminating Ms Teede’s appointment as Shire CEO. 

5       There is no dispute that the Shire did make a decision, by resolution dated 17 October 2024, to terminate Ms Teede’s employment as CEO: Form 2A – Response to Unfair Dismissal Application, Attachment 2.

6       In the judicial review proceedings, Ms Teede alleges this decision was legally invalid on grounds of:

(a) Breach of natural justice due to a failure to afford her a fair hearing, bias, or both.

(b) The absence of evidence to justify the decision.

(c) The absence of power to make the decision in that:

i.  The decision was not authorised by and was contrary to the Local Government Act 1995 (WA) and its subsidiary legislation; or

ii. The jurisdictional facts necessary to enliven the power did not exist.

(d) Failure to follow procedures required by law.

(e) Failure to take account of mandatory relevant considerations.

(f) Unreasonableness.

7       She seeks orders quashing the decision and declaring the decision to be invalid and of no force or effect.

8       The Shire opposes Ms Teede’s stay application. It says that Ms Teede should not be able to ‘park’ her unfair dismissal application, while maintaining other proceedings in which she asserts, in effect, that the Commission does not have jurisdiction because there has been no valid dismissal. The Shire says to grant the stay application would amount to condoning Ms Teede’s abuse of process.

9       This contest is novel. Normally a respondent to proceedings might want to stay them in circumstances where there are multiple actions on foot or where it is alleged that proceedings are an abuse of process. Here it is the applicant who seeks a stay to allow the judicial review proceedings to take their course, while the respondent resists a stay of the unfair dismissal application and at the same time rebukes the applicant’s conduct in commencing the unfair dismissal application.

10    The resolution of the stay application first requires consideration of whether I have power to ‘stay’ the proceedings. If I do, then I must decide whether to exercise the discretion to grant the stay application. There are several factors that are relevant to the exercise of the discretion. Those which are the focus in this matter are:

(a)  Whether Ms Teede’s conduct in maintaining the judicial review proceedings and this unfair dismissal application amounts to an abuse of process, such that the stay application should be dismissed so as not to sanction the abuse.

(b)  The effect of the judicial review proceedings on these proceedings.

(c)  Avoiding multiple proceedings on similar issues.

(d)  The advantages and disadvantages to Ms Teede and the Shire of a stay being granted.

11    Putting aside the question of whether there is power to make an order, as I understand it, if Ms Teede’s conduct did not involve an implicit denial of the Commission’s jurisdiction, the merit of staying or adjourning these proceedings so that interrelated or common issues could be determined in the judicial review proceedings first would be relatively uncontentious. There would be little doubt that several factors relevant to such applications as set out in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 71; (1992) 34 FCR 287 (Sterling Pharmaceuticals) would favour the grant of stay.

12    What provokes the Shire’s opposition is the alleged inconsistency between Ms Teede’s invocation of the Commission’s jurisdiction in the unfair dismissal application whilst simultaneously denying it in the judicial review proceedings.

13    In my view the Shire is mistaken to characterise Ms Teede’s position as involving inconsistency. Much of the foundation for its opposition to the application therefore falls away.

14    It is appropriate to stay these proceedings for the following reasons.

Does the Commission have power to temporarily stay proceedings before it?

15    The Shire puts the Commission’s power to make a temporary stay order in issue. There are two ways the question as to whether the Commission has power arises.

16    The first is that the Industrial Relations Act 1979 (WA) contains no express power to ‘stay’ proceedings or to adjourn proceedings for an indefinite duration. 

17    Section 27(1)(f) permits the Commission to adjourn ‘to any time and place’ and s 27(1)(v) says the Commission may:

[G]enerally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.

18    The Shire acknowledges that the Commission has in the past stayed proceedings, for example where related criminal proceedings are pending: see Portolesi v Fini Group Management Pty Ltd (1997) 77 WAIG 506 at 507. The Commission has also stayed unfair dismissal and denied contractual benefits proceedings where interrelated Supreme Court proceedings were also on foot: De Pledge v Moulding Industries Pty Ltd [2004] WAIRC 11157; (2004) 84 WAIG 1195. In those matters, it is likely that the existence of the power was assumed, without there being a binding finding of law that the power exists.

19    The Shire also concedes that an adjournment of the proceedings might, for practical purposes, be in effect a stay. It says that the power to adjourn the proceedings is limited to the power to adjourn to ‘any time and place’ and therefore, the power to adjourn indefinitely or without specifying a particular or definite point in time is precluded.

20    The answer is simple. The adjournment Ms Teede is seeking is not of an indefinite duration. She seeks an adjournment until the happening of a definite event, that is, the determination of the judicial review proceedings. The moment when the judicial review proceedings are determined is a ‘time’ for the purpose of the power in s 27(1)(f) of the Act.

21    In the event that the Shire is suggesting that s 27(1)(f) does not permit an adjournment to a time determined by the happening of an event, but only to a time expressed as a certain duration or a fixed date and time, I reject that suggestion.

22    The word ‘any’ appearing before ‘time’ denies the ability to read the power as limited in respect of the time to which a matter is adjourned. ‘Any time’ means whatever and whichever time. By its ordinary meaning, ‘any time’ can be a point or moment that is described as a date, as well as a point or moment described by reference to the occurrence of an event. A narrower construction does no more than limit the form that an order adjourning a matter can take. I cannot see any purpose is served by a narrow construction.

23    The second way in which the question of the Commission’s power arises is if the Commission lacks jurisdiction in relation to Ms Teede’s unfair dismissal application. For the Commission to have jurisdiction under s 29(1)(c) of the Act the employee, Ms Teede, must have been dismissed by the Shire. Whether Ms Teede was dismissed by the Shire is a jurisdictional fact which is necessary for the Commission to exercise any of its powers under the Act.

24    The Shire says that Ms Teede ‘says there’s been no dismissal, but also, maybe there has been a dismissal’ (ts 7). It says that if Ms Teede’s case is that the Shire’s decision to terminate her employment was invalid, then the Commission’s jurisdiction has not been engaged in substance, even if she invokes it as a matter of form, and therefore the Commission’s powers are not engaged.

25    The Act does not define what is a ‘dismissal’. But the concept is a broad one. In Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 Smith J said (at 616):

The meaning attributed by the Shorter Oxford Dictionary to the verb "dismiss" is "to send away or remove from office, employment, or position." Speaking of the meaning of the word "dismissal" in Auckland Transport Board v Nunes (1952) NZLR. 412 Fair J said at p 410:

The word "dismissal" may be used in a sense of a peremptory or arbitrary dismissal or a dismissal after due notice or payment under the terms of the contract of employment.

Being qualified as the verb "dismissed" is in the context in which it appears in s 29(2)(a) by the adverb "unfairly" it seems to me that the subsection is designed to apply to all dismissals, whether wrongful or lawful at common law. To paraphrase the words of Bray C J in his reasons for judgment in The Queen v. The Industrial Court of South Australia; ex parte General Motors Holdens Pty Ltd 10 SASR 582 at p 586, a lawful dismissal on notice can, I think, in appropriate circumstances be categorised as unfair, e.g. if dismissed by reason of his religious persuasion—conversely, some wrongful dismissals, as when by excusable mistake a notice is given slightly short of the period specified in the contract of employment or at common law, might not deserve that adjective.

26    It is well established that ‘dismissal’ and ‘termination’ as those words appear in the unfair dismissal provisions of the Act and federal legislation in its various iterations from time to time have the same meaning. That meaning is an act done by an employer terminating or purporting to terminate the employment: Dadey v Edith Cowan University (1996) 70 IR 295; Association of Professional Engineers, Scientists & Managers Australia v Skilled Engineering Pty Ltd (1994) 54 IR 236 per Gray J; Cooper v Darwin Rugby League Inc  (1994) 1 IRCR 130 per Northrop J; Mohazab v Dick Smith Electronics (No. 2) Pty Ltd (1995) 62 IR 200 and Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 136 IR 156  per EM Heenan J at [68].

27    Whether or not there has been an act done by the employer terminating or purporting to terminate the employment is a matter for evidence in each case.

28    Ms Teede’s challenge to the lawfulness and validity of the Shire’s decision to dismiss her in the judicial review proceedings does not amount to a denial of the existence of a dismissal as a jurisdictional fact. It is not inconsistent to maintain that there was a ‘dismissal’ as a matter of fact for the purpose of s 29(1)(c), whilst also denying the dismissal was valid as a matter of law. Both propositions can be true.

29    In light of the Shire’s concession that it made a decision by resolution to terminate Ms Teede’s employment, there was a dismissal by the Shire enlivening the Commission’s jurisdiction. Ms Teede’s judicial review application does not amount to a denial that there was a dismissal in fact, or a denial of the Commission’s jurisdiction.

30    The Commission has jurisdiction in relation to Ms Teede’s unfair dismissal application. I therefore have power to make the orders Ms Teede seeks.

Is Ms Teede’s conduct an abuse of process?

31    The Shire submits that an abuse of process arises in two ways. One is the approbation and reprobation of the Commission’s jurisdiction, or what it says is a collateral misuse of the Commission’s jurisdiction. As outlined above, it says Ms Teede’s conduct is simultaneously accepting and denying that she was dismissed. For the preceding reasons at [25]-[30], I reject this characterisation of Ms Teede’s position.

32    The other way the Shire submits that there is an abuse of process is by maintaining two civil actions where one will lie, where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings. The Shire points out that the issues in the unfair dismissal application and the issues in the judicial review proceedings clearly do overlap substantially.

33    It is not an abuse of process to seek relief in the alternative: Insurance Commission of Western Australia v Woodings as Liquidator of the Bell Group Ltd (In Liq) [No 2] [2017] WASC 372 (ICWA v Woodings) at [83]. The Shire accepts that it is permissible to maintain inconsistent or alternative claims, without that being an abuse of process in and of itself. 

34    Vaughan J set out the relevant principles in Patrick Jebb atf The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 at [102]-[112] (Jebb). Relevant extracts are reproduced below with citations omitted:

[102]   What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. However, the onus of satisfying the court that there is an abuse of process is a heavy one.

...

[103]    In Rogers v The Queen McHugh J observed:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.

[104]    Subsequently, in Ridgeway v The Queen, Gaudron J referred to 'abuse of process' in terms that included within the concept the notion of proceedings that are frivolous, vexatious or oppressive.

…

[106]  The doctrine of abuse of process is informed in part by considerations of finality and fairness.  The underlying public interest is twofold: there should be finality in litigation and a party should not be twice vexed in the same matter. Thus abuse of process may exist where a person seeks to re-litigate an issue already decided. There is a general public interest in the same issue not being litigated over again. It has been said that it would be a 'scandal to the administration of justice' if, a question having been disposed of by one case, the litigant were permitted to set up the case again by changing the form of proceedings.

[107]    For a step in a proceeding to amount to an abuse of process by reason of impermissible re-litigation of a dispute it is not necessary that one of res judicata, issue estoppel or Anshun estoppel be applicable.

….

[111]   Abuse of process may arise beyond the circumstance where a person seeks to relitigate an issue already decided. There may be an abuse of the process of the court in seeking to litigate matters which could and should have been litigated in earlier proceedings. That possibility was recognised by Lord Bingham in the House of Lords in Johnson v Gore Wood & Co:

The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied ... that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings would be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. 

[112]   That aspect of the doctrine of abuse of process has been accepted by various intermediate appellate courts in Australia including the Court of Appeal in Western Australia. It has also been expressly confirmed by four members of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd:

[I]t has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.

(original emphasis)

35    The principles described at [111]-[112] above are encapsulated by the statement in ICWA v Woodings at [35] that it is prima facie vexatious to bring two extant civil actions where one will lie, whether or not the proceedings are in separate courts.

36    In considering whether the rule should apply, consideration should be given to whether there was reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like: Mineralogy Pty Ltd v Sino Iron Pty Ltd  [2015] WASC 454 per Chaney J at [17] citing Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, Moore v Inglis (1976) 9 ALR 509 and Thirteenth Corporation Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491.

37    For cause of action estoppel or issue estoppel to apply, there must first be an exercise of judicial power to determine the parties’ rights or resolve a contested issue. That has not occurred. But as Jebb at [107] indicates, it is not necessary to find that issue estoppel, cause of action estoppel or Anshun estoppel applies, in order to find there is an abuse of process.

38    Nevertheless, the Shire relied on the principle, reflected in the statement of Lord Atkin in United Australia Ltd v Barclays Bank Ltd [1941] AC 1; [1940] 4 All ER 20 (United Australia v Barclays Bank) at 30, that if a person is entitled to one of two inconsistent rights, and if the person has with knowledge done an unequivocal act showing they have chosen one, they cannot afterwards pursue the other. The Shire argued that upon delivery of a judgment in the Supreme Court, that election between inconsistent rights will in effect have been made.

39    I initially understood the Shire’s submission to be to that whichever action proceeds to determination first, regardless of the outcome of the determination, Ms Teede will have been taken to have elected between the two inconsistent rights. Had that been the submission, it would be a misapplication of the principle. The election is between the rights the alternative causes of action seek to enforce: As Brennan J said in Commonwealth v Verwayen [1990] HCA 39; (1990) 95 ALR 321 at 340 (citations omitted):

Election consists in a choice between rights which the person making the election knows he possesses and which are alternative and inconsistent rights. A doctrine closely related to election, and sometimes treated as a species of election, is the doctrine of approbation and reprobation. This doctrine precludes a person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he exercised as, for example, where a person “having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit”. An election is binding on the party who makes it once it is made overtly — or, at all events, not later than on the communication of the election to the party or parties affected thereby. It is binding whether or not others who are affected by the election have acted in reliance on it. In this respect, election is to be distinguished from estoppel.

40    A judgment which does not determine in favour of, and therefore give the benefit of a right, does not preclude the pursuit of another alternative right.

41    In any event, it is not clear that the Shire was seeking to apply the principle in this way.  It later submitted that what Ms Teede ought to have done, is to await the outcome of the judicial review proceedings, and then, if the decision is against her, at that point make an application to bring an out of time unfair dismissal application to the Commission, at which point the Commission would need to determine whether an issue estoppel and/or res judicata prevents her from doing so. In making that submission, the Shire effectively conceded that Lord Atkin’s principle did not preclude the maintenance of a second alternative clause of action after judgment in one cause of action, per se.

42    This reveals the difficulty with the Shire’s objection. Ms Teede’s alternative claims do not meet the threshold condition. They cannot be determined by a single proceeding. The Commission could not review the Shire’s decision, quash it or make a declaration that the decision is invalid. If the Commission determines that a dismissal is harsh, oppressive or unfair it may make the orders set out in s 23A of the Act: for reinstatement, reemployment and for compensation for remuneration lost, or for loss or injury caused by the dismissal.

43    On the other hand, Ms Teede could not pursue a claim for compensation for loss or injury caused by an unfair dismissal by way of judicial review.

44    It cannot be said that Ms Teede’s alternative causes of action could have been pressed by a single proceeding, let alone that she should have commenced only one proceeding. This is not a case where one civil action lies. There is therefore no prima facie abuse of process. Ms Teede has legitimately taken the course of pursing alternative claims within the limits of the jurisdiction of the Supreme Court and the Commission respectively.

45    Ms Teede’s strategy does not undermine the administration of justice, nor does it involve any improper purpose. Her strategy does not infringe the public interest in the finality of litigation. As there is no abuse of process involved in the maintenance of her two alternative causes of action at this point, the fact she does so is not a factor weighing against the grant of her stay application.

46    The Shire has failed to establish that the two proceedings involve effectively identical claims or inconsistent rights. While it is fair to characterise both claims as commonly founded on a denial of procedural fairness, and therefore having essentially the same factual substrata, the criteria for relief, and the relief itself, is not identical.

Other factors in exercising the discretion to adjourn the proceedings

47    The relevant factors in determining whether to stay proceedings are set out in Sterling Pharmaceuticals and L & W Developments Pty Ltd v Della [2003] NSWCA 140; (2003) 135 IR 118 with Sterling Pharmaceuticals being applied in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77; (2020) 386 ALR 632 at [389]. The factors in Sterling Pharmaceuticals (at 290-291) are set out in the following extract:

The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first.

…

In my opinion relevant considerations to be taken into account in the present case include the following:

• Which proceeding was commenced first.

• Whether the termination of one proceeding is likely to have a material effect on the other.

• The public interest.

• The undesirability of two courts competing to see which of them determines common facts first.

• Consideration of circumstances relating to witnesses.

• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

• How far advanced the proceedings are in each court.

• The law should strive against permitting multiplicity of proceedings in relation to similar issues.

• Generally balancing the advantages and disadvantages to each party.

The impact of the judicial review proceedings and the unfair dismissal application on each other

48    To support its case that the two proceedings should be treated as identical claims, the Shire argued that whatever the outcome of the judicial review proceedings might be, the maintenance of the unfair dismissal application will be an abuse because:

(a)  If the judicial review proceedings succeed, Ms Teede must then be taken to have elected between her alternative causes of action, and is estopped from pursuing the unfair dismissal application. The Commission is without jurisdiction as there has been no dismissal.

(b)  If the judicial review proceedings fail, the dismissal decision is valid but the essential issues of fact and law will have been determined giving rise to issue estoppel.

49    For the Shire, the consequence of this position should be a finding that the maintenance of both proceedings is an abuse of process, but a stay should be refused.

50    As set out above, I do not agree there is an abuse of process. But the impact of determinations made in one proceeding for the other proceeding is relevant to whether a stay should be granted.

51    Ms Teede has not expressly conceded that an order quashing or declaring invalid the dismissal in the judicial review proceedings will give rise to cause of action estoppel, although she does say that it will mean that it will be ‘a moot point deciding whether the decision was unfair as a matter of industrial law’ (stay application, pg 5) and that such a result would avoid the need to continue with the unfair dismissal application.

52    On this point, I agree with the Shire. An outcome in the judicial review proceedings which declares the dismissal to be invalid would prevent Ms Teede from continuing with the unfair dismissal application. Even if the Commission had jurisdiction, none of its s 23A powers of reinstatement, re-employment, or compensation would be available. Ms Teede’s success in the judicial review proceedings would constitute an election as between her alternative causes of action: JMD v GJH [2012] WADC 124; (2012) 79 SR 259 at [108]; United Australia v Barclays Bank at 30. 

53    What if the judicial review proceedings do not determine that the dismissal was invalid? Ms Teede does not concede that the judicial review proceedings will necessarily give rise to issue estoppel. It is unclear whether Ms Teede accepts that the judicial review proceedings may result in findings that give rise to an issue estoppel. Her counsel submitted that it is premature to determine whether and how an estoppel might arise, but the possibility of estoppel arising is a good reason to stay these proceedings.

54    The Shire argued that if the judicial review proceedings fail, and the Supreme Court were to find that the termination of Ms Teede’s employment was valid then it must follow that there was no denial of procedural fairness. Such a finding would bind the Commission, and be fatal to the unfair dismissal claim.

55    The issues in the two proceedings significantly overlap. Ms Teede relies on grounds that relate to denial of procedural fairness both for the purpose of her judicial review proceedings, and to demonstrate that the dismissal was unfair.

56    The judicial review proceedings will not necessarily have the exhaustive effect the Shire described though. A lawful dismissal can be harsh, oppressive or unfair: Scicluna v Brooks t/as Bayview Motel Esperance, WA [2016] WAIRC 00862; (2016) 96 WAIG 1475 at [50]. The question of whether the Shire had a statutory obligation to afford Ms Teede procedural fairness for the purpose of the validity of its decision is different to the question of whether a denial of procedural fairness generally renders a dismissal unfair for the purpose of s 29(1)(c). For the latter purpose, a denial of procedural fairness is but one factor in determining whether a dismissal is harsh, oppressive or unfair, but in some cases, may be a most important circumstance: Shire of Esperance v Mouritz (1991) 71 WAIG 891.  Further, the manner of the dismissal may render it unfair even without constituting a denial of procedural fairness: Gilmore v Cecil Bros & Ors (1996) 76 WAIG 1184.

57    Further, the judicial review proceedings might fail on grounds that the decision is not amenable to judicial review, without there being any findings about procedural fairness. Or the relief sought by Ms Teede might be refused as a matter of the Court’s discretion.

58    The point at which an estoppel could arise has not been reached. Nevertheless, there is a prospect that the determination of the judicial review proceedings will resolve some issues if not the entire unfair dismissal application.

59    Whether and how any findings made in these proceedings will have an effect on the judicial review proceedings is less clear. Arguably, issue estoppel could arise such that the Commission’s findings on an issue could prevent a party from re-litigating the same issue in judicial review proceedings, either by virtue of s 34(4) of the Act or common law principles: see the dicta in Moylan v City of South Perth [2006] WASC 262; (2006) 157 IR 441 at [83].

60    Even so, neither the dismissal of the unfair dismissal proceedings, nor the upholding of them, will resolve all of the issues in the judicial review proceedings. A finding that there was a dismissal for the purpose of s 29(1)(c) does not, of itself, resolve the question of whether the dismissal was valid at law: see [28] above. Nor will a finding that there was procedural unfairness. A finding in the unfair dismissal application that there was no denial of procedural fairness will not resolve the question in the judicial review proceedings as to whether there was an absence of power to make the decision.

61    There is a wide scope for the Commission to determine the unfair dismissal application without making findings about whether there was a denial of procedural fairness. A denial of procedural fairness is but one factor in determining whether a dismissal is harsh, oppressive or unfair for the purpose of s 29(1)(c). The test in the unfair dismissal application is ultimately whether the Shire has abused its right to dismiss as outlined by the Industrial Appeal Court in The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1985) 65 WAIG 385 at 386.

62    The possibility of the unfair dismissal application finally resolving all issues in the judicial review proceedings is more remote than the prospect of the judicial review proceedings resolving all issues in the unfair dismissal proceedings.

63    This factor weighs heavily in favour of staying the unfair dismissal application. If upheld, orders in the judicial review proceedings could have a fundamental effect on the unfair dismissal application, precluding the maintenance of the claim entirely. Otherwise, aspects of the unfair dismissal application may be affected by issues determined by the judicial review proceedings.  

Generally balancing the advantages and disadvantages to each party

64    The Shire argued that it would be disadvantaged by a stay of these proceedings, because:

(a)  It remains party to, and exposed to, two sets of proceedings with the prospect of having to litigate the same issues twice; and

(b) The course Ms Teede has taken has effectively deprived it of the ability to oppose an extension of time to bring an unfair dismissal claim.

65    The first argument does not advance the Shire’s opposition to the stay application. Ms Teede has commenced two sets of proceedings. The grant or denial of a stay will not alter the Shire’s position to its disadvantage in this regard. Rather, a stay will alleviate the disadvantage.

66    The second argument is that if Ms Teede only intends to press the unfair dismissal claim if her judicial review application fails, then it should be made at that time and not sooner. By not waiting to commence the unfair dismissal application, Ms Teede has effectively reversed the onus of proof which she would have had, to establish that she ought to be given an extension of time to bring unfair dismissal proceedings. Further, she has denied the Shire the opportunity to argue that an extension of time should not be granted, including for reasons that she is estopped by the determination of the judicial review proceedings from doing so.

67    As to this second argument, a stay will not deprive the Shire of the opportunity to argue, after the judicial review proceedings are determined, that an estoppel arises, should Ms Teede continue to maintain these proceedings. And, even if technically the Shire misses an opportunity to oppose an extension of time, it is difficult to envisage how Ms Teede would not discharge the onus on her of making a case for an extension in circumstances where unfair dismissal proceedings had been foreshadowed as an alternative cause of action to judicial review proceedings at a time when the unfair dismissal claim was within time. All that the course the Shire proposes would achieve is an additional step in the hypothetical later proceedings, namely, an out of time application.

68    And again, a stay does not create this disadvantage. It is the current reality.

69    Finally, I am uncomfortable with the idea that a party should be penalised or criticised for complying with the time limits set out in the Act. The 28-day time limit for commencing a referral of an unfair dismissal claim is designed, in part, to limit prejudice to respondents. The effect of bringing the claim within time is, obviously, that Ms Teede avoids the need to establish a case for an extension of time by commencing the claim only if and after dismissal of judicial review proceedings. But that is an incidental consequence, rather than a ’forensic benefit’ as the Shire contends (ts 9).

70    Compliance with the Act should not be discouraged just because it incidentally advantages a party or disadvantages another. Compliance with the Act means that the respondent is on notice of the claim. It limits prejudice to the respondent and promotes the efficient use of the Commission’s and the parties’ resources compared with what the Shire says ought to occur, namely, nothing until judicial review proceedings are determined, and then an application for an extension of time.

71    I am not persuaded that disadvantage to the Shire is a reason not to grant a stay.

72    On the other hand, to refuse a stay will mean that the parties will both need to commit resources to these proceedings, whilst also prosecuting and defending the judicial review proceedings. A stay is, in this respect, advantageous to everyone.

Which proceeding was commenced first

73    The unfair dismissal application was commenced first. That might ordinarily indicate that the unfair dismissal application should be progressed and if any proceeding is to be stayed it would be the subsequently commenced judicial review proceedings. However, tempering this is the fact that there is a relatively short time limit for commencing proceedings for unfair dismissal of 28 days, and Ms Teede expressly foreshadowed in the unfair dismissal application that she intended to commence judicial review proceedings, and seek to stay the unfair dismissal application.

Avoiding multiplicity of proceedings in relation to similar issues

74    This factor has overlapping considerations to those discussed above. This factor favours the grant of a stay.

Whether work done might be wasted

75    I note that to date, three conciliation conferences have been convened in the unfair dismissal application, but the application has not otherwise been significantly advanced. It is in its early stages. While the Shire has filed a response and participated in conferences, the proceedings have not reached a stage where it can be said this factor weighs against the grant of a stay.

The effects of duplicate proceedings becoming common practice

76    The circumstances of Ms Teede’s termination are relatively unique in that she was the CEO of a local government. The Local Government Act 1995 (WA) contains provisions relevant to the engagement and termination of local government CEOs: s 5.39 and 5.39A. In these circumstances I do not consider that there is a significant risk of it becoming a common practice to bring both unfair dismissal applications in the Commission concurrently with judicial review proceedings.

The public interest

77    The abuse of process issues the Shire raised are relevant to the public interest. As discussed above, I am satisfied that a stay of these proceedings would not be against the public interest for the reasons the Shire argued.

78    Another aspect of the public interest is in ensuring the efficient use of the Commission’s resources.

79    Because the judicial review proceedings might resolve the unfair dismissal application in its entirety, or determine significant issues that arise, a stay is likely to ensure more efficient use of the Commission’s resources.

The undesirability of two courts competing to see which of them determines common facts first

80    This factor self-evidently favours one of the two proceedings being stayed.

Consideration of circumstances relating to witnesses

81    Neither party has suggested that any consideration of the circumstances of witnesses is relevant to the determination of this application.

How far advanced the proceedings are in each venue

82    I was told that the judicial review proceedings have not progressed beyond the filing of the application on 25 February 2025. These proceedings are slightly more advanced. However, this factor does not tip the balance either way.

Orders and Disposition

83    Having weighed the relevant factors, I am satisfied that it is appropriate to stay these proceedings until the determination of the judicial review proceedings. I will order accordingly, with liberty to the parties to apply.