Commission dismisses unfair dismissal application due to applicant’s improper conduct
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
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.
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.
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.