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.