UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Scott Cheetham

APPLICANT

-v-

Burger Bones

RESPONDENT

CORAM Commissioner T Emmanuel

DATE FRIday, 4 April 2025

FILE NO/S U 127 OF 2024

CITATION NO. 2025 WAIRC 00213

Result Application dismissed

Representation

Applicant No appearance

Respondent No appearance

Order

WHEREAS this is an application for unfair dismissal under s 29(1)(c) of the Industrial Relations Act 1979 (WA) that was listed for a show cause hearing on 4 April 2025;

AND WHEREAS on 18 March 2025 the Commission told Mr Cheetham that the Commission was concerned that he was not prosecuting his claim and that if he did not comply with the Commission’s direction, application U 127 of 2024 may be listed for a hearing for Mr Cheetham to show cause why it should not be dismissed for want of prosecution;

AND WHEREAS on 21 March 2025 the Commission wrote to Mr Cheetham and told him that the Commission was concerned that Mr Cheetham was not prosecuting application U 127 of 2024, because he had not updated the Commission about his application since 21 February 2025, he had failed to comply with the Commission’s directions in the matter and he had not filed materials in support of his application as directed. The Commission told Mr Cheetham that the matter was listed for a show cause hearing on 4 April 2025, and that if Mr Cheetham did not attend the show cause hearing and show cause why his application should not be dismissed, his application would be dismissed;

AND WHEREAS on 21 March 2025 Mr Cheetham emailed the Commission and said that the next few weeks would take his full attention as he deals with a range of personal matters, and ‘I apologise for not following the timeline agreed to and for not notifying you sooner. If you have to drop this case as a result of this I understand.’;

AND WHEREAS on 2 April 2025 the Commission emailed Mr Cheetham and said:

I refer to application U 127/2024 and to your attached email dated 21 March 2025.

You have not said that you intend to file the required documents by a particular date, nor have you requested an extension of time. Rather, in your email you said: “If you have to drop this case as a result of this I understand.”

From your email, it appears that you do not intend to attend the show cause hearing listed this Friday, 4 April 2025, and further, that you do not intend to pursue application U 127/2024.

In the circumstances, the matter remains listed for the show cause hearing.

AND WHEREAS at the hearing on 4 April 2025 there was no appearance for or by Mr Cheetham;

AND WHEREAS the Commission 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 Industrial Relations Act 1979 (WA);

AND WHEREAS service on Mr Cheetham was effected by sending notice of the hearing by pre-paid post to the postal address that Mr Cheetham provided to the Commission, and by emailing notice of the hearing to the email address that Mr Cheetham provided to the Commission: r 24(2)(d) Industrial Relations Commission Regulations 2005 (WA);

AND WHEREAS the Commission was satisfied that Mr Cheetham had been duly served with notice of the show cause hearing and proceeded in Mr Cheetham’s absence;

AND WHEREAS the Commission considers that there has been a relatively long delay in the context of this application, there has been not been an adequate explanation for that delay (because Mr Cheetham’s explanation by email only deals with part of the period of delay), there is no evidence of hardship to Mr Cheetham if his application is dismissed and there is nothing before the Commission to suggest that the respondent’s conduct in the matter has in any way contributed to Mr Cheetham’s lack of prosecution of his application;

AND WHEREAS Mr Cheetham has shown a general pattern of behaviour of not progressing his application for some weeks, has not complied with directions from the Commission, has not asked for an extension of time, has not indicated that he intends to file the required documents and did not attend the show cause hearing on 4 April 2025. The Commission considers that Mr Cheetham has had a reasonable opportunity to prosecute his application but has not done so. In the circumstances, the Commission considers that Mr Cheetham is not prosecuting his application and application U 127 of 2024 should be dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA) for want of prosecution;

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

THAT this application be, and by this order is, dismissed.

Commissioner T Emmanuel