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Full Bench refuses extension of time to appeal brought nearly 12 months out of time

The Full Bench has dismissed an appeal brought out of time, finding that the appellant failed to progress his appeal with proper expediency, and that the appeal had no prospects of success.

Background

The appellant was employed at a Catholic college under a written contract of employment that the appellant maintained was for a fixed term.  The appellant’s position was abolished, and after the appellant did not accept an alternative teaching position, the respondent informed the appellant that he was regarded as having repudiated his contract of employment and his employment was at an end. The appellant commenced proceedings in the Commission for a denied contract benefit, which were subsequently dismissed.

The appellant brought an appeal against a procedural decision of the learned Commissioner to set aside his summons to call the Roman Catholic Bishop as a witness, which was made prior to the substantive hearing in his first instance unfair dismissal application. The appellant lodged the appeal against this decision approximately one year out of time and sought an extension of time to bring the appeal.

Contentions

The appellant contended there were three reasons for the delay in lodging his appeal.  They were pressure and preoccupation with the substantive hearing as a self-represented litigant; confusion with specific sections of legislation and regulations; and challenges with his attempts to seek pro bono legal advice.

Findings

The Full Bench noted that not only was the extension of time brought around one year out of time, but that it was also lodged after the hearing of his substantive claim; after the decision dismissing his substantive claim; after he appealed the decision dismissing his substantive claim; after filing four interlocutory applications in the earlier appeal; after a decision dismissing all of his interlocutory applications in the earlier appeal; after he commenced a further appeal in the Industrial Appeal Court against the decision in his interlocutory applications in his earlier appeal; and after his earlier appeal was heard and the decision reserved.

 The Full Bench noted that the four main factors to be considered in the exercise of its discretion were the length of delay, the reasons for the delay, the prospects of success of the appeal, and the extent of any prejudice to the respondent, noting however that these were not exhaustive, and that other factors may be relevant.

The Full Bench considered that the appellant’s appeal had no prospects of success and that this was fatal for his case for an extension of time. The Full Bench found that even if the appeal had some merit, all the other relevant factors sided against the appellant.

The Full Bench noted that the length of the appellant’s delay of 12 months was extreme and to overcome this required the appellant to show that the other relevant factors were in his favour. The Full Bench found that the appellant had not shown any reason for the delay from the conclusion of the substantive hearing to the date he eventually filed the appeal, and that the delay had caused real detriment to the respondent that was incurable.

The Full Bench considered that the appellant’s dilatory conduct was a further reason to refuse to extend the time to appeal, and found that the appellant had not prosecuted his appeal with proper expediency.

The appeal was dismissed.

The decision can be read here.

Local government employers and employees transition to State industrial relations system

As of 1 January 2023, all local government employers and employees will be covered by the State industrial relations system. 

The State and federal governments have now taken the necessary steps so that local government employers in WA are declared not to be national system employers for the purposes of the Fair Work Act 2009 (Cth). 

The effect of this is that all local government employers and employees will be within the jurisdiction of the State industrial relations system for all industrial matters including employment disputes, awards or agreements. These matters will be dealt with by the Western Australian Industrial Relations Commission. Matters involving enforcement of industrial instruments will be dealt with by the Industrial Magistrate's Court.

For more information on common applications, please refer to the information under the Employees and Employers heading on the Commission’s website. The Commission also has a range of Fact Sheets and Practice Notes that provide general information on the processes of the Commission. 

Further information on claims before the Industrial Magistrate’s Court can be found here.

Commission opening hours during Christmas and New Year period

The Western Australian Industrial Relations Commission will be closed from 4.30 pm on Friday, 23 December 2022 until 8.30 am on Tuesday, 3 January 2023.

During this period, documents can still be lodged for filing via the digital portal, or by email to Registry@wairc.wa.gov.au. Please note if you are filing or lodging a document which is to be done so within a prescribed time or on a prescribed date and the Registry is closed on the last day on which it may be filed, it is taken to have been filed within time if it is filed or lodged on the next day that our Registry is open for business. 

If you have an issue relating to an urgent industrial matter requiring immediate attention, please contact the Registrar directly on 0404 044 338 during usual business hours (8:30am to 4:30pm).

Notice of Application for Alteration of Registered Rules

The Registrar has given notice of an application by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch to the Commission in Court Session to alter its registered rules pursuant to section 62 of the Industrial Relations Act 1979 (WA). The application includes a proposal to change the union’s name and eligibility for membership.

The matter will be heard by the Commission in Court Session at 2:30pm on Friday, 10 February 2023.

Any person or organisation with sufficient interest may give notice of objection to the application within 21 days of publication of the notice. A copy of the proposed rule alterations may be inspected in the Registry on Level 17, 111 St Georges Terrace.

The full notice can be read here.

 

Chief Commissioner orders discovery of information relating to union election

The Chief Commissioner has ordered the discovery of documents relating to a union’s officeholder elections, after a member alleged that there were irregularities in the conduct of the election.

Background

The applicant is a member of the Australian Nursing Federation, Industrial Union of Workers Perth. The applicant, who was an unsuccessful candidate for the position of Secretary, complained there were election conduct irregularities. An application was brought against the Union as the first respondent, the Returning Officer, Western Australian Electoral Commission as the second respondent, and the Registrar, Western Australian Industrial Relations Commission as the third respondent.

Contentions

The applicant contended that there was insufficient time for members to return their ballots by the election closing date, especially those living in regional or remote areas. The applicant contended that there were discrepancies between the roll of voters for the election and the first respondent’s membership records. The applicant contended that this materially affected the outcome by preventing or hindering the full and free recording of votes and the correct ascertainment or declaration of the results of the election. The applicant contended the requested documents were too broad.

The first respondent objected to the discovery of the roll of electors and the register of its members, as this would prejudice the privacy and security of confidential information in the records. The first respondent contended that no orders should be made for discovery and inspection, until further particulars were furnished by the applicant in relation to various aspects of her application. The first respondent opposed the contentions of the applicant in relation to the conduct of the election.

The third respondent contended that her status should be changed to that of an intervener, and that the Registrar’s role under the Act was to facilitate, rather than to conduct, the election, and it would not be appropriate for her to be a protagonist in the proceedings.  The third respondent contended that the correspondence requested could bring into play other proceedings involving the first and third respondent.

Findings

The Chief Commissioner found that the centrality of the allegations involving the roll of electors and the member register, along with member names and addresses, meant that it was axiomatic that the discovery and inspection of the records was just, as a matter or equity, good conscience, and the substantial merits of the case.

The Chief Commissioner found that the applicant could access the records and that access should not be limited to the applicant’s solicitors and counsel. The Chief Commissioner found that any potential insecurity of the documents being provided in electronic form were not a basis to refuse production of the documents.

The Chief Commissioner issued orders for discovery of documents, and ordered that the third respondent’s status be amended to that of an intervenor.

The decision can be read here.

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