100421198

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KENNETH GREEN

APPLICANT

 -v-

 KUNUNURRA REGIONAL ECONOMIC ABORIGINAL CORPORATION

RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECH

DATE MONDAY, 2 FEBRUARY 2004

FILE NO APPLICATION 924 OF 2003

CITATION NO. 2004 WAIRC 10610

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Result Application adjourned.

Catchwords Termination of employment –claim of unfair dismissal –– Corresponding application made to Australian Industrial Relations Commission – Whether applicant intending to proceed - Application adjourned – Industrial Relations Act 1979 (WA) s 29(1)(b)(i); s.29AA

Representation

Applicant Mr K. Green

Respondent Mr S. Phillips (of counsel)

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Reasons for Decision

1         On 16 June 2003 Kenneth Green referred a claim to this Commission that he had been unfairly dismissed by the respondent, Kununurra Regional Economic Aboriginal Corporation.  He attached to his claim a copy of a letter from the respondent terminating his employment “effective immediately” which is dated 23 May 2003.  Mr Green’s application states that he received this letter by hand on 29 May 2003.  His application states that he has filed claims in both this Commission and in the Australian Industrial Relations Commission.

2         On 14 July 2003 the respondent forwarded a Notice of Answer and Counter Proposal to the Commission.  It rejected Mr Green’s claim on grounds which it is not necessary at the moment to consider.  The Notice of Answer refers to Mr Green making a “concurrent submission to the Australian Industrial Relations Commission dated 12 June 2003”.  The Commission forwarded the matter to the Deputy Registrar, Karratha for his investigation pursuant to s.93 of the Industrial Relations Act 1979.  A meeting was held before the Deputy Registrar, Karratha, on 12 August 2003.  The meeting was adjourned to enable Mr Green to seek legal advice.  The Deputy Registrar was to follow the matter up within two weeks. 

3         On 21 August 2003 Mr Green rang the Deputy Registrar to advise that he was still waiting for a lawyer to get back to him.  Mr Green rang again on 2 September 2003 to advise that he was still waiting. 

4         On 16 September 2003 the Deputy Registrar rang Mr Green but there was no answer.  The Deputy Registrar then returned the matter to the Commission in Perth.  The Commission endeavoured to contact Mr Green by telephone on 13, 17, 18, 19 and 20 November 2003.  In each case, there was no answer to the Commission’s call.  The Commission then wrote to Mr Green informing him that there had been no further contact from him since 2 September 2003, a period of over 10 weeks, and informing him that the Commission would now list the matter for mention only for him to show cause why his application should not be struck out for want of prosecution.

5         This caused Mr Green to at last make contact with the Commission.  He wrote a letter on 1 December 2003.  In the letter Mr Green stated that he had still been trying to get a lawyer.  He also referred to a number of matters to do with the merits of the matter which at present are not relevant.  He requests that the matter not be dismissed. 

6         On 22 December 2003 the Commission forwarded a copy of Mr Green’s letter to the respondent’s legal advisors for the respondent’s information.  The letter requested that if the respondent wished to respond to the issue of whether or not Mr Green’s application should be struck out for want of prosecution, it should do so.  On 14 January 2004 the Commission received correspondence dated 9 January 2004 from the respondent’s solicitors.  That correspondence itself confirms the proceedings before the AIRC. 

7         The correspondence notes that Mr Green “appears to be proceeding with his application to the AIRC, further directions having been made therein as recently as 1 December 2003”.  The respondent notes that it has raised a jurisdictional objection in the AIRC on the basis that Mr Green was not a federal employee at the relevant time.  The jurisdictional objection is in relation to the claim for relief in respect of the termination of employment.

8         The respondent refers to s.29AA of the Act to argue that Mr Green’s application in this Commission should be dismissed on the basis that Mr Green has not prosecuted the application and also on the basis of a lack of jurisdiction in the State Commission because Mr Green has lodged his application also in the Federal Commission. 

9         I have considered all of these matters and find as follows.  Mr Green has not kept in regular contact with this Commission as he properly should do.  It was Mr Green’s decision to lodge a claim in this Commission and he has a duty to proceed with it properly, or at least keep the Commission informed as to why he is not requesting that his application now be dealt with.  It may well be that Mr Green has been concentrating on his application in the AIRC.  However, that does not excuse his failure to inform the Commission regarding his claim.  In my view, there are grounds to now dismiss his claim.

10      There are, however, other factors to be taken into account.  The fact that Mr Green is proceeding with his AIRC application necessarily means that the respondent is aware of Mr Green continuing to actively pursue his belief he has been unfairly dismissed.  The failure of Mr Green to keep this Commission informed of his intentions does not mean that the respondent believes he no longer intends to contest his dismissal.  He clearly does and the respondent is necessarily aware of this. 

11      Further, although s.29AA of the Act indeed states that the Commission must not determine a claim of unfair dismissal if the dismissed employee has lodged an application with the Australian Industrial Relations Commission in respect of the same matter, the Commission may determine the claim if the application to the Australian Industrial Relations Commission is rejected or dismissed on the ground that it is not within the jurisdiction of the AIRC to determine the application:  s.29AA(2). 

12      On the facts of this matter, the respondent is actively challenging the jurisdiction of the AIRC to hear and determine Mr Green’s claim for relief in respect of his dismissal.  It is therefore at least possible that the AIRC may decide that it does not have the jurisdiction to deal with Mr Green’s claim of unfair dismissal.  If that is decided by the AIRC then s.29AA envisages that the Commission may then proceed to hear Mr Green’s application.

13      Taking all of these factors into account, particularly the fact that the respondent is aware of Mr Green’s active and continuing pursuit of his belief that he has been unfairly dismissed, this Commission will not presently dismiss his application. 

14      However, Mr Green is hereby reminded of the necessity for him to keep this Commission informed of his intentions.  A failure to do so may well result in this application being dismissed for want of prosecution.  An Order will therefore issue adjourning this application to await the advice of Mr Green.  The respondent is able at a future time to apply to have Mr Green’s application struck out if it considers future circumstances warrant the Commission considering such a course of action. 

15      Order accordingly.