WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00875

DELIVERED : wednesday, 16 September 2015

FILE NO. : C 9 OF 2015

Applicant

AND

Director General, Department of Education

Respondent

CatchWords : Refusal to employ – industrial matter – notation on employment file – jurisdiction – public sector standard – whether res judicata created – whether abuse of process – whether unreasonable delay

Legislation : Industrial Relations Act 1979 (WA)  s 7, s 23(1), s 23(2a), s 27(1)(a), s 44, s 44(9)

Public Sector Management Act 1994 (WA)  s 97(1)(a)

Public Sector Management (Breaches of Public Sector Standards) Regulations 2005  reg 6(1)

Result : Application dismissed for want of jurisdiction

Representation:

Counsel:

Applicant : Mr D Stojanoski

Respondent : Mr R Bathurst

Solicitors:

Applicant : Slater & Gordon Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Buckland v Palmer [1984] 3 All ER 554

Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231

Fitzpatrick v Baulderstone Clough Joint Venture (1999) 79 WAIG 2310

Knight v Commissioner of Police [2011] WASC 93

Paul Appleton -v- Sharyn O'Neill, Director General, Department of Education [2012] WAIRC 00381; (2012) 92 WAIG 910

Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [2013] WASC 245

SSTU v Director General, Department of Education [2014] WAIRC 00753; (2014) 94 WAIG 1469 (the Munforti case)

The Civil Service Association of Western Australia Incorporated v Director General Department of Justice [2004] WAIRC 10979; (2004) 84 WAIG 869

The Civil Service Association of Western Australia Incorporated v Director General Department of Justice [2004] WAIRC 13300; (2004) 85 WAIG 60

The Civil Service Association of Western Australia Incorporated v Perth Theatre Trust (1997) 77 WAIG 1086

Willoughby v Clayton Utz [No 2] [2009] WASCA 29; (2009) 40 WAR 98

Reasons for Decision - Jurisdiction

1         This is an application made by the State School Teachers’ Union of W.A. (Incorporated) (SSTU) on 21 April 2015 pursuant to s 44 of the Industrial Relations Act 1979 (the Act) for a conference.  The grounds for making the application set out the circumstances of Mr Appleton who is a member of the SSTU and who had been employed by the respondent as a teacher on numerous fixed term and casual contracts of employment between 1990 and 2009.  His last fixed term contract of employment with the respondent ended on 18 December 2009.

2         The grounds say that on 17 August 2010 (which should be ‘17 February 2010’), Mr Appleton was charged by the WA Police for an alleged assault against a student and, as a result of the then pending criminal charges, the respondent placed a caveat or notation on Mr Appleton’s employment file on 17 February 2010 stating that should Mr Appleton in future seek employment with the respondent, his application is to be referred to the respondent’s Standards and Integrity Directorate.  At or around the same time, Mr Appleton’s teacher identification number with the respondent was cancelled by the respondent.  On 1 November 2010 the criminal proceedings against Mr Appleton were dismissed.

3         The grounds continue that between 2011 and 2014 Mr Appleton was employed as a teacher in a number of private schools.  On 4 November 2014 Mr Appleton applied for employment as a teacher with the respondent.  His application was acknowledged.  On 7 November 2014, Mr Appleton received via email a letter from the respondent’s Schools Recruitment, Staff Recruitment and Employment Services advising that he is not eligible to be rehired by the respondent, and in order to progress his application he will need to apply in writing to have the restriction on further employment lifted.  This Mr Appleton has done, however he has not received a response from the respondent. 

4         The SSTU alleges in the circumstances that the respondent has refused to employ Mr Appleton and it has made this application for a conference seeking the following outcomes or orders: 

That pursuant to the Objects of the IR Act (s. 6 (af)), the applicant seeks the Commission facilitate fairness to Mr Appleton as teacher in the industry and order the respondent remove any notations/caveats from the employment file of Mr Appleton and reinstate his Teacher Identification number.

5         On 13 May 2015, the respondent filed an answering statement responding in detail to the grounds of the application.  It states that the application relates to the respondent’s decision not to further employ Mr Appleton and the Commission has no jurisdiction to deal with it because the issues of recruitment, selection and appointment are the subject of a Public Sector Standard. 

6         It states further, or alternatively, that –

(a) the issues raised and the relief sought are the same, or substantially the same, as in application numbered C 66 of 2012 which was dismissed by the Commission on 17 November 2014 and the doctrine of res judicata prevents the applicant from bringing the application;

(b) it is an abuse of process for the SSTU to bring this application and it should be dismissed under s 27(1)(a) of the Act; and

(c) this matter relates to actions taken in February 2010 and the decision not to offer Mr Appleton further employment taken in January 2012.  Given the delay in again bringing these matters before the Commission, the application should be dismissed under s 27(1)(a) of the Act. 

7         The Commission listed the conference application for hearing in order to deal with these preliminary issues. 

Whether the matter is the subject of a Public Sector Standard

8         Both the SSTU and the respondent agree that the matter referred to in the conference application deals with the refusal of the respondent to employ Mr Appleton and that this is an industrial matter as defined in s 7 of the Act.  The challenge to jurisdiction arises because although s 23(1) of the Act provides that, subject to the Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter, s 23(2a) provides as follows: 

Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act. 

9         It is agreed that there is a procedure referred to in s 97(1)(a) of the Public Sector Management Act 1994 (the PSM Act).  Section 97(1)(a) provides that the functions of the Public Sector Commissioner include making recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards. 

10      In turn, reg 6(3)(c) of the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 relevantly provides that a person who has applied unsuccessfully to be selected to form part of an appointment pool, and claims there has been a breach of the standard in relation to the process of selection, is able to make a claim for relief to the Public Sector Commission under reg (6)(1) of those regulations. 

11      The relevant Public Sector Commission Standard is the Employment Standard (Statement of Agreed Facts, Attachment 25).  The Employment Standard states as follows: 

The Employment Standard applies when filling a vacancy (by way of recruitment, selection, appointment, secondment, transfer and temporary deployment (acting)) in the Western Australian Public Sector.

The Employment Standard requires four principles to be complied with when filling a vacancy:

Merit Principle

The Western Australia Public Sector makes employment decisions based on merit. Merit usually involves the establishment of a competitive field. 

In applying the merit principle a proper assessment must take into account: 

• the extent to which the person has the skills, knowledge and abilities relevant to the work related requirements and outcomes sought by the public sector body; and
• if relevant, the way in which the person carried out any previous employment or occupational duties.

Equity Principle

Employment decisions are to be impartial and free from bias, nepotism and patronage.  For secondment the employee consents. For transfer employment conditions are comparable.

Interest Principle (applies to secondments, transfers and acting)

Decisions about an employee’s secondment, transfer or acting take account of the employee’s interests and the work related requirements of the relevant public sector body.

Transparency Principle

Decisions are to be transparent and capable of review.

The respondent’s submission

12      The respondent says that there is one overarching issue in this matter:  the respondent’s refusal to recruit, select or appoint Mr Appleton to a fixed term vacant position at a school.  The purpose of the notation on Mr Appleton’s employment record in 2010 was to deal with future issues, that is, a potential refusal to employ him in the future.  The reason the SSTU seeks orders that the Department reinstate Mr Appleton’s identification number and remove any notation/caveat on his file is to remove an impediment to him securing further employment with the Department.  Mr Appleton himself has made clear that the purpose of his request to have his casual ID reinstated and the adverse caveat removed is because they are an impediment to him securing ongoing employment as a teacher with the respondent; that is the objective to which the conference application is directed.  

13      For that reason, the matter before the Commission is a matter relating to the filling of a vacancy by way of appointment.  That is a matter in respect of which a procedure is prescribed under the PSM Act and therefore the Commission does not have the jurisdiction to enquire into and deal with it.  The respondent says that even if the notation or caveat is removed, it will make no difference because the respondent has decided it will not offer employment to Mr Appleton in the future and the notation or caveat is merely the administrative procedure to give practical effect to that decision. 

The SSTU’s submission

14      The SSTU says that the claim made in the conference application is not about whether the respondent will or will not appoint Mr Appleton according to the Employment Standard.  It is about whether the respondent’s action in making the notation is fair in the circumstances and whether the notation constitutes a penalty against Mr Appleton.  Accordingly the claim is not one that must be dealt with in accordance with a standard such as the Employment Standard. 

15      Rather, the notation is a prohibition on employment, which is a refusal to employ, and it has a disbarring effect; it prohibits re‑employment and is therefore an industrial matter and the Commission has the jurisdiction to deal with the matter. 

16      The SSTU also makes the point that Mr Appleton’s application for employment was not considered on its merits; the notation or caveat meant that his application was not dealt with, therefore the Employment Standard has no application.  The Employment Standard will apply after the notation or caveat is removed, thus allowing Mr Appleton’s application to be progressed.

Consideration

17      The agreed facts show that in 2014 the respondent advertised for suitably qualified teachers to apply to be part of a fixed‑term teacher appointment pool.  Its purpose is to have a list of suitably qualified teachers available to fill fixed-term vacant positions at schools.  Applying for the pool does not guarantee appointment (AB 63) but it is an invitation for suitably qualified teachers to apply in order that they may be employed in fixed-term positions in primary and secondary schools across the State.  In my view, the respondent was in the process of ‘filling a vacancy’ by way of recruitment, selection or appointment. 

18      Mr Appleton’s 4 November 2014 application for employment, which was received and acknowledged but not progressed and which ultimately was refused, was a part of that process.  The refusal to employ him arises out of the process of filling a vacancy by way of recruitment, selection or appointment.  The very act of the respondent upon which the SSTU relies to give jurisdiction to the Commission, i.e. the refusal to employ Mr Appleton, arose from the respondent’s process of filling a vacancy by way of recruitment, selection, appointment and his application for employment.  Even if the notation, as the SSTU’s submission urges, is a ‘penalty’ against Mr Appleton, and also has a disbarring effect on his future employment with the respondent, this conference application is made because the respondent has refused to employ him. 

19      The respondent was in the process of filling a vacancy by way of recruitment, selection or appointment which is a matter covered by the Employment Standard.  The refusal of the respondent to employ Mr Appleton was an outcome of that process.  It is difficult to see that is not a matter covered by the Employment Standard. 

20      The SSTU submits that the matter the Commission is asked to deal with in the conference application is a stage prior to the application of the Employment Standard.  It is whether the respondent’s action in making the notation is fair in the circumstances and whether the notation constitutes a penalty against Mr Appleton; addressing only the application for an order to remove the notation and to reinstate Mr Appleton’s teacher identification number is not part of the Employment Standard.  However, the submission faces a number of difficulties.

21      First, the evidence shows that the notation on Mr Appleton’s file has one purpose: it is to give effect in the future to the respondent’s decision not to offer him further employment.  The evidence is that the respondent found in May 2010 that he had acted in a manner which affects his suitability for future employment with the respondent (ex R1 att CW5).   It made the decision after considering not only that he had been charged by the WA Police for an alleged assault against a student but also other circumstances over the course of his past employment with the respondent.  The notation is an administrative part of the respondent’s process for employing teachers.  It is the means to an end because it ensures that Mr Appleton is not offered further employment in the respondent’s schools unless his application is first approved by the Director, Standards and Integrity (ex R1 at 13). 

22      If the notation is able to be separated from the employment process then a finding is more likely that it is not a matter relating to the Employment Standard.  That was the case in SSTU v Director General, Department of Education [2014] WAIRC 00753; (2014) 94 WAIG 1469 (the Munforti case) where there was no evidence that Mr Munforti had applied for and been refused employment with the respondent or that he has any intention of applying in the future.  In that matter, Scott ASC observed at 25:

The issue before the Commission is not about whether the respondent will or will not appoint Mr Munforti according to the requirements of the Employment Standard.  It is about whether the respondent’s action in making the notation is fair in the circumstances and whether the notation constitutes a penalty against Mr Munforti.  In those circumstances, it is not a matter to which s 23(2a) applies because it is not a matter, at this stage of the process, relating to the Employment Standard.  Were Mr Munforti to apply for employment and the respondent rely upon the notation in a way which was not in accordance with the principles of merit, equity and transparency in particular, then that may be a matter which is beyond the jurisdiction of the Commission. 

23      However the circumstances in this conference application are different from Munforti because Mr Appleton has applied for employment and the respondent, relying upon the notation, has refused to offer him employment.  Paragraph 18 of the conference application says that the matter being brought to the Commission: 

Goes to the prospect of re‑establishing the employment relationship, the essence of Mr Appleton's industrial matter.

24      For that reason, the Munforti case is distinguishable from this matter and is not of assistance to the SSTU’s submission here. 

25      Secondly, I turn to the SSTU’s submission that Mr Appleton’s application for employment was not considered on its merits because of the notation therefore the Employment Standard has no application.  The SSTU in this matter does not allege that the respondent did so in a way which was not in accordance with the principles of merit, equity and transparency. 

26      The scope of the Employment Standard was considered by the Industrial Appeal Court (IAC) in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231.  In that case, a Mr Jones had been interviewed by a selection panel and considered to be the best candidate.  A recommendation for his employment was sent to the appellant.  Mr Jones was advised that he had been recommended for the position but was subsequently told the position would not be filled and that the appellant felt that he was unable to meet the requirements of the vital aspects of the selection criteria. 

27      A conference application had been made to the Public Service Arbitrator for an interim order that the respondent in that matter (who is the appellant before the IAC) not abolish the position, not appoint another person to it, and maintain adequate money in its budget to fund it.  The conference application also sought orders that the actions of the respondent in that matter relating to the construction and forwarding of a memorandum be declared void; that any actions taken by persons in response to it be declared void; that the respondent complete the implementation of Mr Jones to the position; and that the respondent in that matter send a copy of the Commission’s orders by email to all staff. 

28      The respondent in that matter challenged the jurisdiction of the Arbitrator to deal with the matter on the basis of the Employment Standard.  The Arbitrator held that she had jurisdiction in the matter ‘as long as the matter the subject matter of the application does not fall within the ambit of the relevant public sector standard’ and found in that case it did not do so:

In my view this is an issue which does not relate to a breach of the Recruitment, Selection and Appointment Standard as it is a dispute about the lawfulness of the Director General’s actions in intervening in the selection process relating to the Level 7 position after Mr Jones had been advised by the respondent that he had been recommended for appointment to this position (Civil Service Association of Western Australia Incorporated v Director General Department of Justice [2004] WAIRC 10979; (2004) 84 WAIG 869 at 24).

29      The Arbitrator then proceeded to deal with the matters and ordered that Mr Jones be appointed ([2004] WAIRC 13300; (2004) 85 WAIG 60 at 4).  An appeal to the Full Bench against the Arbitrator’s final decision was dismissed ([2005] WAIRC 01813; (2005) 85 WAIG 1907).

30      However, the Industrial Appeal Court found that the Employment Standard prevented the Arbitrator from dealing with the matter.  It was held by Wheeler and Le Miere JJ at 54 that it was an error to hold that the jurisdiction of the Commission is excluded only where a breach of the public sector standard is alleged.  Their Honours noted that the standard is not framed so narrowly:

54 As we understand it, the Full Bench considered that there were two reasons why s 80E(7) did not operate to exclude the jurisdiction of the Arbitrator in the present case.  The first is to be found in [77] of the reasons of the President, with whom Senior Commissioner Gregor agreed.  That was that the present case was not a matter "which related in any way to any Public Sector Standards, at least in the manner and in the way in which it came before and was required to be considered by the Arbitrator".  That approach reads s 80E(7) as excluding the jurisdiction of the Arbitrator only where a breach of a public sector standard is the allegation made to the Arbitrator.  However, the subsection is not framed so narrowly.  Rather, it excludes jurisdiction in relation to any "matter" in respect of which a procedure is prescribed.  That is, it excludes jurisdiction in relation to the "matter", not in relation to particular allegations.  The matter in this case is the breach of a very broad standard relating to the appointment of employees.

55 If the Full Bench's reasoning were correct on this point, s 80E(7) on one view would never have any work to do, since the "matter" before the Arbitrator will always be an "industrial matter" as defined by the Act, being, in effect, a matter affecting or pertaining to the work of employees, rather than a matter relating directly to breach of a public sector standard.  Since ss 7 ‑ 9 of the PSM Act are so broad in their scope, it would invariably be possible to frame a claim so as to allege breach of those principles, rather than to rely directly on breach of a public sector standard. 

56 While s 80E(7) is in some respects not happily phrased, and while we acknowledge that as a matter of legal principle, it is undesirable to construe too broadly provisions which limit the right of persons to approach courts and tribunals, it seems to us that, having regard to the statutory context, s 80E(7) must be read as excluding jurisdiction in respect of a matter, wherever there is a matter in respect of which a relevant standard has been prescribed and in respect of which procedures of the type described in s 97(1)(a) have been prescribed.  In this case, as we have noted, a standard has been prescribed in relation to selection and appointment, and the result of the prescription of procedures pursuant to s 97 of that standard is that the jurisdiction of the Arbitrator is excluded in relation to the whole of that "matter", regardless of the precise allegations of misconduct or unfair conduct which may be made in respect of it. 

31      It will be seen that the conference application made to the Public Service Arbitrator included matters to do with the conduct of that respondent in the construction and forwarding of a memorandum, and actions taken by persons in response to it which, seemingly, would not be matters covered by the Employment Standard.  However, the jurisdiction of the Arbitrator is excluded in relation to the whole of the matter of selection and appointment, regardless of the precise allegations of misconduct or unfair conduct which were made in respect of it.

32      In this case, the SSTU does not allege that there has been a breach of the Employment Standard.  Nevertheless, a standard has been prescribed in relation to selection and appointment, and the result of the prescription of procedures pursuant to s 97(1)(a) of the PSM Act for that Employment Standard is that the jurisdiction of the Commission is excluded in relation to the whole of the matter of selection and appointment, regardless of the precise allegations of unfairness to Mr Appleton, or the imposition of a penalty, which is made in respect of it.  Even though Mr Appleton’s application for employment in November 2014 was not considered on its merits because of the notation, he applied for employment and the respondent refused his application.  It is a ‘matter’ in respect of which a procedure has been prescribed.  The notation on his employment file, and the removal of Mr Appleton’s teacher identification number, on the evidence in this case, do not have a purpose separate from the respondent’s employment process. 

33      Nor do they have a purpose separate from the respondent’s decision not to further employ him.  Addressing them separately as the SSTU urges here would not result in Mr Appleton being considered for future employment: on the evidence of Ms Westland at [31], removal of the notation would merely mean that it would be more difficult to ensure that the respondent’s decision not to further employ Mr Appleton is carried into effect.

34      For those reasons I uphold the respondent’s submission and find on the facts of this case that the Commission does not have the jurisdiction to enquire into and deal with the subject matter of the conference because it is about a matter in respect of which a procedure referred to in s 97(1)(a) of the PSM Act is prescribed under that Act and as a result s 23(2a) of the Act applies.  An order will issue dismissing this application for want of jurisdiction. 

35      In the event that I am wrong in this conclusion, I now consider the other matters upon which submissions were made.

Res judicata

The respondent’s submission

36      The respondent submits that the SSTU is prevented by the doctrine of res judicata from bringing this application insofar as it relates to the decision to put an annotation on Mr Appleton’s employment record and to ‘terminate’ his casual identification number.  The respondent refers to application C 66 of 2012 which was an application brought by the SSTU. 

37      C 66 of 2012 was a conference application concerning Mr Appleton.  It set out to the date of that application, being November 2012, the same background about Mr Appleton as is set out in this conference application.  The outcomes sought in that conference application were that the respondent reinstate Mr Appleton’s identification number, that the respondent remove any note/caveat on his personal employment file, that the respondent withdraw the order that Mr Appleton has committed misconduct and/or a breach of discipline, that the respondent acknowledge that the criminal proceedings referred to were discontinued by Police, and that no investigation will be required to be commenced by the respondent in respect of the incident.

38      As a matter of record, no agreement was reached at the conference in C 66 of 2012 and on 17 April 2013, a memorandum of matters referred for hearing and determination under s 44(9) of the Act was made showing that the SSTU sought the following orders: 

(a) That the Department reinstate Mr Appleton’s identification number. 

(b) That the Department remove any note/caveat on the personal employment file of Mr Appleton. 

(c) Further in the alternative, that the matters now be referred to the Professional Standards and Integrity of the Department of Education for investigation in accordance with the provisions of the PSM Act. 

39      The matters referred for hearing and determination on 17 April 2013 became CR 66 of 2012. 

40      On 30 October 2014, the respondent applied to have CR 66 of 2012 dismissed for want of prosecution.  On 31 October 2014, the SSTU filed a Notice of withdrawal or discontinuance.  The respondent did not consent to the applicant withdrawing or discontinuing and by order dated 17 November 2014, the Commission ordered that application CR 66 of 2012 be dismissed. 

41      The respondent states that the fact that the application was dismissed, and not discontinued, is crucial because the effect of a final judgment dismissing, rather than discontinuing, is to create a res judicata (‘a thing decided’) which is a bar to further proceedings.  In the submission of the respondent, the order of the Commission dated 17 November 2014 was a final judgment, there is an identity of parties as between the parties to that final order and the parties to this matter, and there is an identity of subject matter or ‘cause of action’. 

The SSTU’s submission

42      In reply, the SSTU submits that res judicata arises only from a final order on the merits of a matter and that this has not occurred in this case.  It says that application CR 66 of 2012 visited past disciplinary matters and sought orders from the Commission that the Commission revoke disciplinary action imposed by the respondent in respect of those past disciplinary matters.  In contrast, the current application regards the notation acting as a penalty and a prohibition on employment constituting a refusal to employ and that the notation has a disbarring effect.  This application is not an attempt to re‑litigate a dispute already determined by the Commission. 

Consideration

43      Whether the doctrine of res judicata applies in this case turns principally on the issue whether it is necessary for there to have been a prior decision on the merits of the matter.  The respondent submits that it is not necessary, referring to Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [2013] WASC 245 at [8], a decision of Edelman J in Chambers. 

44      In that matter, Edelman J was deciding whether the appropriate order to finalise the matter before him was an order that the action should be discontinued or an order of dismissal.  The circumstances were that the dispute between those parties was compromised by an agreement reached between them.  The only issue remaining between the parties was the manner in which the litigation should be terminated by the court.  Edelman J noted that the defendant’s promise was to compromise the whole of the claim brought by the plaintiff and that the terms of the compromise mean that if the plaintiff were to bring fresh litigation which sought to re‑agitate any part of its claim, then it would be in breach of the compromise agreement.  In that context, his Honour noted that discontinuance by itself does not prevent the plaintiff from re‑litigating the issues in the proceedings, whereas dismissal creates res judicata which is a bar to further proceedings. 

45      It is apparent from a reading of his Honour’s decision that the issue which arises in this matter, that is whether an order of dismissal needs to have been made after a consideration of the merits to create res judicata, was not an issue in the proceedings before his Honour.  I therefore do not regard his decision as bearing upon that issue. 

46      In my view, the decided authorities, on balance, show that res judicata is created by a decision on the merits pronounced by a tribunal which is judicial in the relevant sense (Knight v Commissioner of Police [2011] WASC 93 per EM Heenan J at [48]).  In Willoughby v Clayton Utz [No 2] [2009] WASCA 29; (2009) 40 WAR 98, Pullin JA, with whom Wheeler JA and Miller JA agreed, examined the issue of res judicata.  At [14], his Honour refers to Spencer Bower, Turner & Handley, Res Judicata (3rd ed, 1996) [19] stating that a party setting up res judicata as a bar to an opponent’s claim must establish the following constituent elements, namely: 

(a) the decision was judicial in the relevant sense;

(b) it was in fact pronounced;

(c) the tribunal or court had jurisdiction over the parties and the subject matter;

(d) the decision was: 

(i) final, and

(ii) on the merits;

(e) it determined the same question as that raised in the later litigation; and

(f) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem. 

47      In my view, in order to establish res judicata in this case, there will need to have been a decision on the merits. 

48      However, the order in CR 66 of 2012 (Statement of Agreed Facts att 21) shows no consideration of the merits.  The reasons for Scott ASC’s decision are found in the preamble, or recitals, to the order.  Although the respondent submits that the Commission cannot ‘go behind’ the order which issued, in my view it is not necessary to do so.  It is consistent with the practice in this Commission for the preamble, or recitals, of the order to constitute the reasons for decision which s 35(1) of the Act obliges the Commission to hand down with the order (see Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00849; (2010) 90 WAIG 1517 at [58]). 

49      The recitals to the order in CR 66 of 2012 show that –

(a) the SSTU, which was the applicant in CR 66 of 2012, had not attended to a number of matters the subject of directions which had issued and nothing further had been heard from the SSTU; 

(b) the Commission had listed the matter for mention, however the SSTU did not even appear at that hearing; 

(c) at a later, resumed hearing, the respondent had sought that CR 66 of 2012 be dismissed for want of prosecution; and

(d) the SSTU subsequently had filed a Notice of withdrawal or discontinuance in respect of the whole claim. 

50      The operative part of the order is that the matter ‘be, and is hereby dismissed’.  There is some substance in the submission of the respondent that the recitals set out the chronology of what occurred, but do not give Scott ASC’s reasons why the order which she issued was an order dismissing the matter, rather than an order that the matter be discontinued.  However, in my view, nothing turns on that for the purposes of this matter.  The significance of the recitals is that they show that there had been no consideration of the merit of the matters in CR 66 of 2012.  Whilst the order which issued was, in its terms, a final order, it issued in circumstances where the SSTU had failed to attend to a number of matters the subject of directions and had failed to attend a hearing when the matter was listed for mention and where eventually it had filed a Notice of withdrawal or discontinuance. 

51      In these circumstances, the respondent has failed to make out that the doctrine of res judicata applies in this case. 

Abuse of process

The respondent’s submission

52      The respondent submits that irrespective of the existence of res judicata, or another form of estoppel, an attempt to re‑litigate a dispute which has been dealt with in earlier litigation is an abuse of process.  As the present proceedings raise the same issue regarding the decision to put a notation on Mr Appleton’s employment record and to ‘terminate’ his casual identification number that were dealt with in C 66 of 2012, it would be manifestly unfair and an abuse of process for this application to be allowed to proceed.  The only new ‘matter’ is that, despite being notified by the Department on 3 February 2012 that it would not employ him again, on 4 November 2014 (four days after the SSTU had indicated to the Commission it did not wish to proceed with CR 66 of 2012) Mr Appleton created a further ‘paper’ dispute by applying for appointment as a fixed term teacher. 

53      The respondent says the powers given to the Commission in s 27(1)(a) of the Act are wide and indicative of the special nature of the Commission’s jurisdiction as a specialist tribunal whose primary task is to settle and prevent industrial disputes.  That power can be exercised if further proceedings are not necessary or desirable in the public interest or that for any other reason the matter should be dismissed or the hearing thereof discontinued as the case may be. 

54      The SSTU submits for the same reason that there is no res judicata that this conference application is not an attempt to re-litigate a dispute and there can therefore be no abuse of process.

Consideration

55      It is correct that the Commission has powers under s 27(1)(a) of the Act which permit it to discontinue a matter that is not in the public interest.  It is also correct that it may be an abuse of process to bring two actions in respect of the same cause of action (Buckland v Palmer [1984] 3 All ER 554; The Civil Service Association of Western Australia Incorporated v Perth Theatre Trust (1997) 77 WAIG 1086 at 1090; Fitzpatrick v Baulderstone Clough Joint Venture (1999) 79 WAIG 2310). 

56      However, the Commission should be slow to exercise this power where there has not yet been a hearing of the merits of the matter.  Mr Appleton sought to argue the merits himself in a claim of unfair dismissal in 2012, however the Commission held that it was without jurisdiction to enquire into and deal with his claim because he had not been dismissed (Paul Appleton -v- Sharyn O'Neill, Director General, Department of Education [2012] WAIRC 00381; (2012) 92 WAIG 910) so the ‘merits’ of his claim were not considered.  It is already established that the application brought by the SSTU in CR 66 of 2012 was not on that occasion considered on its merits.  In the absence of any prior action in which the merits of the matter have been dealt with, it is difficult to find the abuse of process necessary for the Commission to use its powers in s 27(1)(a) of the Act. 

Unreasonable delay

The respondent’s submission

57      The respondent’s final submission is that the Commission should dismiss the matter on the basis that the present proceedings substantially relate to the decision in February 2010 to put an annotation on Mr Appleton’s employment record and to ‘terminate’ his casual identification number.  Even though Mr Appleton applied for appointment as a fixed term teacher on 4 November 2014, an application the respondent states Mr Appleton must have known would be unsuccessful, the SSTU delayed five and a half months before filing the present application. 

58      The respondent states that while s 44 of the Act does not place a time limit within which a dispute must be referred to the Commission, principles of industrial harmony and reasonableness suggest that disputes should be referred expeditiously.  Given that the matter truly in question occurred in February 2010, and given that even if the notation was removed, the respondent would still not voluntarily employ Mr Appleton, the Commission should dismiss the matter. 

The SSTU’s submission

59      The SSTU states that there has not been an unreasonable delay in this matter.  It submits that the respondent advised Mr Appleton on 7 November 2014 that he was not eligible to be rehired and on 10 November 2014, Mr Appleton wrote to the Director Staffing within the respondent requesting the removal of the restriction on his file that prevented re‑employment.  The SSTU submits that it is not unreasonable for there to have been time taken for Mr Appleton, and the SSTU, to seek the appropriate legal advice to bring this application. 

Consideration

60      I accept the respondent’s submission that the present proceedings substantially relate to the respondent’s decision in February 2010.  The orders sought demonstrate this.  Mr Appleton has known since May 2010 that he was considered by the respondent not to be eligible to be rehired and it is now over five years since that time. 

61      Mr Appleton has shown since 2012 that he either contests the decision or would like it to be reviewed.  He applied for employment in November 2011 and correspondence to him in February 2012 and March 2012 (Statement of Agreed Facts, att 11 and 12) show that this was refused and he sought to contest this in his claim of unfair dismissal in 2012.  The respondent has known since that time that Mr Appleton seeks to challenge or review the respondent’s decision. 

62      With his application dismissed, the SSTU on his behalf took up the issue in November 2012 with C66 of 2012.  It was actively pursued by the SSTU at least until the issue of the Directions in July 2013, after which the SSTU’s failure to observe them was followed by it filing a notice of withdrawal in November 2014, some 15 months later.  It is open to conclude, and I do, that the respondent’s decision of February 2012 was not actively pursued by the SSTU for perhaps 15 months.  Without more, I would hold for that reason that the issue of the respondent’s decision is stale and that the respondent’s submission has merit.

63      There is more: on 7 November 2014 the respondent again refused to employ Mr Appleton.  That has led to this present conference application.  The respondent’s submission describes Mr Appleton’s application for employment as a ‘paper dispute’ made to allow this conference application.  That may be so, but it does not alter the fact that there was a refusal to employ in 7 November 2014.

64      Further, and significantly, the respondent’s email of 7 November 2014 did not just inform him that he was not eligible to be re-hired, which might have been expected given the respondent’s 2010 decision; it went further.  It informed him that in order to progress his current application he will need to apply in writing to have the restriction on his employment lifted.  It suggests to me, at least initially, that from the respondent’s viewpoint, and notwithstanding the submission that the respondent is not going to employ Mr Appleton again (ts 29), in November 2014 there was a process for him to have the respondent’s 2010 decision revisited.  Mr Appleton sought to commence that process.

65      The orders sought in the conference application are directed to that end.  I am therefore not persuaded that the fact that the present proceedings substantially relate to the respondent’s decision in February 2010 is itself a proper basis to now dismiss it.

66      Given that the SSTU had already been aware of Mr Appleton’s circumstances since it had made the claim in C 66 of 2012, a delay of over five months before it filed the current application is a long time however that does not provide a proper basis to now dismiss the application.  I note in Munforti that a period of at least two years between the respondent’s decision in his case and the proceedings commencing in the Commission was not seen as a bar to the decision being dealt with by the Commission. 

Conclusion

67      For the reasons given above, an order will now issue dismissing this application for want of jurisdiction.