The appellant commenced a claim in the Industrial Magistrates Court (IMC) against the respondent employer alleging damaging action in contravention of section 97A of the Industrial Relations Act 1979 (The Act). The IMC struck out parts of her statement of claim as they did not disclose a cause of action under s. 97A and were not salvageable by further amendments; however, three distinct claims under s. 97A were preserved.

The appellant appealed the IMC's orders striking out parts of her statement of claim on the ground that Industrial Magistrate Scaddan made an error of fact by concluding that she was transferred to another position after her payroll contract ended. She contended that the Industrial Magistrate’s decision did not align with the facts, as she had successfully applied for another position.

The Full Bench considered that the Industrial Magistrate had not made any such a finding, and that her reasons for striking out parts of the pleadings was because the facts did not disclose a cause of action, not because she found the facts themselves unfounded.  The Full Bench further considered whether an appeal lies from any decision of the IMC to the Full Bench under section 84 of the Act, concluding that the reference to "decision" in section 84 means a final determination of the substantive application.

The Full Bench found that the Industrial Magistrate’s orders striking out parts of the appellant's statement of claim and particulars were not a final determination of her claims on their merits. The orders did not prevent the subject matter of a claim from being revived by a fresh and valid claim, subject to it being made within time. The Full Bench therefore dismissed the appeal.

The decision can be read here. 

The applicant, formerly employed as a Caretaker by the respondent, sought reinstatement and claimed unfair dismissal before both the Western Australian Industrial Relations Commission (WAIRC) and the Fair Work Commission (FWC). The respondent, a national system employer, argued that the applicant's employment was covered by a federal award.

The WAIRC contacted both parties regarding the jurisdictional objection raised by the respondent and sought the views of the parties as to how they would like to proceed. The respondent reasserted their belief that the FWC was the appropriate body for the matter, while the applicant replied referencing his grievances with the respondent but not addressing the question of how to progress the claim. 

The WAIRC scheduled a hearing to determine the matter of the jurisdiction of the claim, at which the applicant submitted that he rejected the findings of the FWC in those proceedings, while the respondent maintained that the WAIRC lacked jurisdiction to hear the matter, and that the matter had been heard by the FWC with no jurisdictional issues raised. Considering the proceedings before the FWC and legal precedent precluding the WAIRC from dealing with applications heard already by the FWC, Commissioner Walkington determined that the Commission was unable to hear and determine the application and dismissed it accordingly.

The decision can be read here. 

The applicant filed an unfair dismissal claim against the respondent, which she described as a partnership. The respondent filed response claiming that the applicant had named the employing entity incorrectly and supplying a copy of the trust deed. The respondent also objected to the Commission’s jurisdiction, claiming to be a national system employer.

The Commission contacted the applicant twice seeking her views on the respondent’s jurisdictional objection, to which she did not respond. The Commission then notified the parties that the matter was listed for hearing, including that should the applicant fail to attend, an order may issue dismissing the application.

The applicant did not attend the hearing or provide any reason for failing to respond to requests for information from the Commission. As a result, Commissioner Walkington found the applicant had failed to prosecute her case and dismissed the application.

The decision can be read here. 

The applicant, who had been employed as an administration officer with the respondent, filed an unfair dismissal claim with the Commission asserting that she was forced to resign due to bullying and harassment. The application was filed 220 days out of time, and as such the respondent contends that the Commission ought not to accept the application.

While employed with the respondent, the applicant met with the People Services Advisor regarding concerns about her work environment, the conclusion of which was that the respondent would endeavour to find an alternative administrative role for her. The applicant then commenced an extended period of personal leave, until the respondent notified her that she was required to return to work in her substantive role while the respondent continued to consider alternative roles for her. Following this, the applicant emailed her resignation with two weeks’ notice.

Following her resignation, the applicant emailed and then met with the CEO of the respondent with her grievances and to discuss her request for a financial settlement for alleged harassment and bullying. Subsequently, the applicant contacted the respondent seeking financial compensation and stating that she had been unable to secure alternative employment. In each instance, the respondent replied stating that it did not consider it was obligated to provide any compensation. 

The applicant contended that the reason for her delay in filing an unfair dismissal claim was due to ongoing medical issues, time taken to seek professional advice, and time taken for the respondent to respond to her grievances but did not supply medical evidence to that effect. Reviewing the communications between the parties, Commissioner Walkington determined that while the applicant had pursued her request for financial compensation, she had not demonstrated that her communications challenged the termination of her employment as a dismissal. The Commissioner further found that the applicant had other options to remedy her concerns than resignation, and that she did not attempt to withdraw her resignation during her notice period, and as such her claim was unlikely to succeed.

Finding that there was not adequate explanation for the lengthy delay, the merits of the application, and the balance of fairness, Commissioner Walkington found that it would not be unfair to the applicant to refuse the application and ordered that the application not be accepted.

The decision can be read here. 

In proceedings in an unfair dismissal claim, the applicant filed an application to amend one of the forms attached to the unfair dismissal claim. The applicant contended that leave to amend the application should be granted because of the positions that the Commission and parties took at the conference regarding the amendment of the application, because the amendments are made early in the proceedings and unlikely to prejudice the respondent, and that the amendments are consistent with the purpose and effect of provisions of the Industrial Relations Act 1979 (The Act).

The respondent opposed the amendment, arguing that the applicant provided no reasons for the need to amend, relied on confidential communications from the conciliation conference, and that the proposed amendments were vague and inconsistent with the applicant's previous statements. The respondent also contended that they would face prejudice if the amendment were granted, including the need to draft and file an amended response, and the ambiguity of the proposed amended claim. 

Commissioner Tsang agreed with the respondent’s submission that the contents of the conciliation conference were private and confidential, and conducted on a without prejudice basis, thus could not be relied on as grounds for granting leave to amend the form. The Commissioner determined further that lack of prejudice to the respondent would not be a sufficient reason to grant the application to amend, and that in any case she accepted the respondent’s assertions that the amendment would cause prejudice. Finally, regarding the provisions of the Act, the Commissioner found that while the Commission may allow the amendment, they do not oblige the Commission to do so, and the applicant failed to provide evidence to support why the Commission should grant leave to amend the form. For these reasons, Commissioner Tsang dismissed the application to amend.

The decision can be read here.