The Commission has dismissed an unfair dismissal application on the basis that the applicant’s behaviour in the course of proceedings had potential to interfere with the administration of justice, and that the applicant engaged in improper conduct

Background

The applicant was a Senior Teacher and Data Analyst employed by the respondent, the Director-General, Department of Education. The applicant filed an unfair dismissal application, and the respondent filed a strike out application to dismiss the application. Numerous instances of communications involving the applicant, or their partner were submitted into evidence.

Contentions

The applicant contended she was unfairly dismissed and that the power to dismiss an unfair dismissal application under s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) was an exceptional one and should be exercised sparingly and with caution. The applicant contended that dismissing the application would be harsh and extreme, that the Commission’s power to dismiss should not be used to ‘punish’ the applicant and that it was relevant to consider the applicant’s intentions and the effect of her conduct.

The respondent in their strike out application originally contended three grounds, but later reduced this to one. The respondent contended that the application should be dismissed due to the applicant’s improper conduct towards several potential witnesses including by seeking to intimidate them.

Findings

The Commission considered the parties’ submissions and the authorities and principles in relation to its discretion to dismiss unfair dismissal applications. The Commission found that communications by the applicant were inappropriate, fell within the definitions of intimidatory and harassing conduct and constituted improper conduct.

The Commission found that s 27(1)(a) of the IR Act empowers it to dismiss unfair dismissal applications at any stage. The Commission found that the power to dismiss the application under s 27(1)(a)(iv) of the IR Act is an exceptional one, should be exercised sparingly and with extreme caution, and that prima facie, the applicant was entitled to invoke the Commission’s jurisdiction.

The Commission found it would be empowered to dismiss the application if satisfied that ‘for any other reason’ the applicant’s unfair dismissal application should be dismissed. The Commission found that it is entitled to apply the maxims of equity that ‘he who seeks equity must do equity’ and ‘he who seeks equity must come with clean hands.’

The Commission found that the correspondence the applicant sent had the capacity, tendency or potential to interfere with the administration of justice and that the applicant therefore engaged in improper conduct. The Commission found that the applicant had engaged in misconduct in relation to her unfair dismissal application and did not comply with the equitable maxims.

The Commission dismissed the application.

The decision can be read here.

The Full Bench has dismissed an appeal that was lodged by a single member of a partnership as the decision appealed against did not finally determine the rights of the parties.

Background

The appeal involved a husband-and-wife café business partnership. They partners sought to appeal a default judgement order made by the Industrial Magistrates Court. The respondent was an industrial inspector that had alleged both members of the partnership had failed to produce records for examination, and that one member had obstructed an industrial inspector in the performance of their statutory duties. The Industrial Magistrates Court order was made against both partnership members individually, and the appeal was purportedly brought by both members of the partnership as the appellants

Contentions

The appellants sought an order quashing the default judgement order and the remittal of proceedings back to the Industrial Magistrates Court. The partner submitting the appeal contended their husband had represented both partners in the proceedings and referred to various complaints concerning the industrial inspectors, their affidavits, their service of documents and the time given to respond.

The respondent contended that only one partnership member was an appellant and that her husband had no appeal before the Full Bench. The respondent contended that a default judgement decision was interlocutory and not a final decision meaning the appeal was incompetent and should be dismissed.

Findings

The Full Bench noted that one partner had not been represented by the other as that partner was a respondent in her own right, she did not appear and filed the notice of appeal in her own name. The Full Bench noted there was no reference to her husband as an appellant in her appeal notice or grounds. The Full Bench found that for a person to have standing they must be ‘a party’ to the proceedings under s 84(3) of the Industrial Relations Act 1979 (WA) (‘IR Act’). The Full Bench found that only one partner was an appellant and that no appeal was filed by her husband.

The Full Bench found the relevant ‘decision’ that was the subject of the appeal was the order of the learned Industrial Magistrate that granted the respondent’s application at first instance for default judgment. The Full Bench noted issues with the amended and purported grounds of appeal referencing ‘appellants’ and referring to the incorrect decision. The Full Bench found that under s 27(1) of the IR Act it was not open to the Full Bench to amend an appeal that had the effect of substituting the decision under appeal for another decision. The Full Bench found it could only consider the ground which contended that the Industrial Magistrate erred in not granting an adjournment on the hearing of the default judgment application, and the assertion of a denial of procedural fairness.

The Full Bench found that the decision of the learned Industrial Magistrate could not be the subject of an appeal under s 84 of the IR Act, as it did not finally determine the rights of the parties to the proceedings. The Full Bench noted that the Industrial Magistrates Court had a discretionary power to set aside a default judgement but that no application was made by either partner to set aside the order.

The Full Bench found that the appeal was incompetent and dismissed the appeal. 

The decision can be read here.