The Occupational Safety and Health Tribunal (Tribunal) has granted leave to an applicant to discontinue her referral to the Tribunal.

The applicant reported a purported breach of the Occupational Safety and Health Act 1984 (WA) (OSH Act) at the school in which she worked. The applicant indicated that reasonable requests to minimise injury were denied, and that she was not able to attend the workplace. The applicant referred the matter to the Tribunal, seeking orders for the payment of salary and entitlements; an external investigation or audit of the workplace; and reinstatement in her employment at an alternative workplace within the Department of Education.

The respondent contended that the applicant left the school without authorisation as required under the OSH Act and disputed that there were not reasonable grounds to believe that remaining at the school premises would expose the applicant to risk of imminent and serious injury, or imminent and serious harm to her health.

The applicant later made application to amend her application, including to extend the remedies sought to aggravated damages; damages; and compensation. The matter was listed for two directions hearings, both of which the applicant did not attend. The respondent sought to dismiss the claim for want of prosecution

The matter was listed for a hearing to show cause why the matter should not be dismissed. The applicant requested the matter be heard on the papers. On the evening prior to the hearing, the applicant made application to withdraw and/or amend her application. The applicant raised additional objections to the representation of the respondent by a legal practitioner.

Findings

Commissioner Walkington noted that the provision of s 31(1) of the Industrial Relations Act 1979 (WA) (IR Act), read together with s 51I of the OSH Act, gave the respondent the right to be represented by a legal practitioner, and that the applicant’s consent was not required.

Walkington C found that under the OSH Act, the Tribunal did not have the necessary authority to consider damages, aggravated damages nor compensation, and therefore the application to amend the referral for these remedies could not succeed. She further found that it was not appropriate for the matter to be heard on the papers, given that the respondent opposed this request, and the nature of the matter may require oral evidence and the capacity to cross examine witnesses.

Walkington C found that it was within the Tribunal’s power to dismiss the matter under s 27(1)(a) of the IR Act or to grant leave to discontinue the application. Walkington C inferred from the applicant’s submissions that, should the application to amend the remedies sought and the request for the matter to be heard on the papers be refused, the applicant wished to discontinue the referral.

The Tribunal granted the applicant leave to discontinue the matter.

The decision can be read here.