CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00060

DELIVERED : THURSday, 10 February 2022

FILE NO. : B 76 OF 2021

Applicant

AND

V P Lowe Freight

Respondent

CatchWords : Denied contractual benefits – Conciliation conference held and settlement agreement reached – application dismissed for want of prosecution

Legislation : Industrial Relations Act 1979 (WA): s 27

  Industrial Relations Commission Regulations 2005 (WA): reg 25(3)     

Result : Application dismissed for want of prosecution

Representation:

Applicant : No appearance

Respondent : No appearance

Cases referred to in reasons:

The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162

Reasons for Decision (Ex Tempore)

1         Mr Ingram filed an application for denied contractual benefits.

2         A conciliation conference was held in this matter on 11 November 2021. At the conference, the parties reached an agreement to settle application B 76 of 2021 and all matters arising out of the employment relationship (Settlement Agreement). The terms of the Settlement Agreement were confirmed in an email sent by my Associate to the parties on 11 November 2021.

3         On 1 December 2021, my Associate emailed Mr Ingram and asked him to update the Commission about his application by 6 December 2021. Mr Ingram did not update the Commission.

4         On 8 December 2021, my Associate again emailed Mr Ingram and asked him to update the Commission about his application. Mr Ingram did not update the Commission.

5         On 20 December 2021, my Associate emailed Mr Ingram a third time, and asked him to update the Commission about his application. She also informed him that if he did not update the Commission by 23 December 2021, his application would be listed for a hearing to show cause why it should not be dismissed for want of prosecution. Mr Ingram did not update the Commission.

6         On 31 December 2021, the respondent emailed my Associate and confirmed that the respondent had complied with the Settlement Agreement. The respondent attached a receipt for payment of the settlement sum to Mr Ingram.

7         On 4 January 2022, my Associate telephoned Mr Ingram but he did not answer. She left a message asking him to call her back as soon as possible about his application.

8         My Associate telephoned Mr Ingram again on 5 January 2022, but Mr Ingram did not answer.

9         Mr Ingram’s application was listed for a hearing to show cause on 4 February 2022. Accordingly, Mr Ingram was served with a notice of hearing, and informed by my Associate that if he did not attend the hearing and show cause why his application should not be dismissed, it would be dismissed for want of prosecution.

10      Mr Ingram did not appear at the show cause hearing.

The law

11      The Commission can dismiss a matter under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act):

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i)   that the matter or part thereof is trivial; or

(ii)  that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be

12      In The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (2000) 80 WAIG 3162 (Barminco), the Full Bench set out the principles to consider when deciding whether to dismiss an application for want of prosecution. They include the length of the delay, the explanation for the delay, the hardship to the applicant if the application is dismissed, the prejudice to the respondent if the action is allowed to proceed, and the conduct of the respondent in the litigation: Barminco (3162).

Consideration

13      The Commission has the power to proceed to hear and determine the matter in the absence of any party who has been duly served with notice of the proceedings: s 27(1)(d) of the IR Act. Service on Mr Ingram in this matter may be effected by leaving the notice at, or sending it by pre-paid post to, Mr Ingram’s usual or last known place of abode: reg 24(2)(d) Industrial Relations Commission Regulations 2005 (WA) (IR Regulations).

14      Alternatively, service can be effected on Mr Ingram by sending the notice of hearing as an attachment to an email sent to the email address that Mr Ingram has provided to the Commission: reg 25(3) of the IR Regulations.

15      In circumstances where my Associate:

(a) emailed the notice of hearing to the email address Mr Ingram provided to the Commission (and received a successful delivery receipt); and

(b) posted the notice of hearing to the postal address that Mr Ingram provided to the Commission,

I am satisfied that Mr Ingram has been duly served with notice of these proceedings and the Commission may proceed with the hearing in his absence.

16      Mr Ingram has not contacted the Commission since his conciliation conference on 11 November 2021, responded to the emails sent to him by my Associate or attended the show cause hearing on 4 February 2022.

17      I consider that:

(a) there has been a relatively long delay in the context of this application;

(b) there has been no explanation for that delay;

(c) there is no evidence of hardship to Mr Ingram if his application is dismissed; and

(d) there is nothing before the Commission to suggest the respondent’s conduct in the matter has in any way contributed to  Mr Ingram’s failure to prosecute his application.

18      In the circumstances, I find that Mr Ingram has not prosecuted his application at the Commission. Further, I’m satisfied based on the respondent’s email dated 31 December 2021, and the attached payment receipt, that the respondent has complied with the Settlement Agreement. It would not be in the public interest for Mr Ingram to be allowed to continue his application.

Conclusion

19      I will order that this application be dismissed under s 27(1)(a) of the IR Act.