Commission dismisses unfair dismissal application of after applicant failed to prosecute their claim
The Commission has dismissed a claim under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) finding that the applicant did not take any steps or intend to prosecute their claim.
The applicant filed an application pursuant to s 29(1)(c) of the IR Act. The Commission understood that at a conciliation conference in May 2022, the matter was resolved and a Form 1A – Notice of Discontinuance was sent to the applicant.
The applicant did not file the Notice of Discontinuance, and did not respond to two further emails. The applicant was contacted by telephone on 21 June 2022, and she indicated that she was unwell, had not completed the form, and requested another one, which was sent.
On 29 June 2022, the Commission contacted the parties, noting that the form had not been filed and attaching a Notice of Hearing listing the matter for a directions.. The applicant failed to appear at the directions hearing or answer calls that day. It was ordered that a further hearing be listed for the applicant to show cause why the application should not be dismissed.
The applicant was sent a copy of the orders with a Notice of Hearing, and on 14 July the directions hearing transcript. She apologised for the delay and asked for a copy of the form to close the matter, which was sent on the same day.
On 22 July, the applicant was again contacted, noting the form had not been filed, requesting an update, and confirming the show cause hearing was listed for 26 July 2022.
The applicant did not communicate further, file the form, or appear at the hearing on 26 July 2022.
The Commission found that the applicant had no intention of continuing, progressing or prosecuting their claim. The Commission noted the applicant’s general lack of any engagement with the Commission and their statement in their last email concerning having the matter closed.
The Commission noted that it can dismiss any matter before it at any stage of the proceedings if satisfied by the requirements in s 27(1)(a) of the IR Act.
The Commission reiterated that it is not in the public interest that matters not be expeditiously dealt with. The Commission noted that it is the interests of parties and the public that matters before the Commission be resolved as efficiently as the justice of the case requires.
The Commission noted that if the applicant intended to progress their application, they had not done so with the necessary assiduity, promptness, or diligence. The Commission noted that as a result both the respondent and the Commission had incurred unnecessary expense in attempting resolve the matter, that the situation was prejudicial to the respondent, and against the public interest.
The Commission found that the applicant had not taken any, or the appropriate, steps to prosecute their claim and that they did not intend to prosecute their claim. The Commission ordered that the application be dismissed.
The decision can be read here.