UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00311

DELIVERED : Tuesday, 26 July 2022

FILE NO. : U 36 OF 2022

Applicant

AND

East Metropolitan Health Service

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal application – Apparent applicant did not intend to prosecute claim following conciliation outcome – s 27(1)(a) – Summary dismissal – Public interest

Legislation : Industrial Relations Act 1979 (WA) 

Result : Application dismissed

Representation:

Applicant : No appearance

Respondent : Mr P Heslewood and Ms A De Boer

Case(s) referred to in reasons:

Pietracatella v W.A. Italian Club (Inc) [2001] WAIRC 03509; (2001) 81 WAIG 2532

Kangatheran v Boans Limited (1987) 67 WAIG 1112

Reasons for Decision

Ex Tempore

1         Ms Lindy Yusufu (the applicant) filed an application pursuant to s 29(1)(c) of the Industrial Relations Act 1979 (WA) (IR Act).

2         The Commission listed the for a hearing requiring the applicant to show cause why her application should not be dismissed under s 27(1)(a) of the IR Act on the grounds that further proceedings are not necessary or desirable in the public interest, or for any other reason that the matter should be dismissed or the hearing of it discontinued.

Relevant procedural history

3         A conciliation conference was held in this matter on Tuesday, 24 May 2022.

4         The Commission understood that the outcome from conciliation resolved the application.

5         Chambers sent a copy of a Form 1A ‑ Notice of Discontinuance to the applicant for her to complete by email on the same day as the conciliation conference.

6         Having heard nothing further from the applicant, my Associate followed up with an email requesting an update on the status of the matter on 31 May 2022, and again, on 14 June 2022.

7         When no response was received to any of those three email communications, my Associate telephoned the applicant on 21 June 2022 and spoke with her. The applicant indicated that she had been unwell and had not yet gotten around to filing a Form 1A ‑ Notice of Discontinuance and requested a further copy of the form for discontinuing the application to be sent to her.

8         On that same day, 21 June 2022, a further Form 1A ‑ Notice of Discontinuance was sent to the applicant with a request that it be completed, signed and returned.

9         No response was received to that email either.

10      On 29 June 2022, at my direction, my Associate wrote to the parties, noting that a Form 1A ‑ Notice of Discontinuance had not been filed and attaching a Notice of Hearing listing the matter for a directions hearing on Friday, 8 July 2022. The email and Notice of Hearing were sent to the applicant at the email address provided on her Form 2 ‑ Unfair Dismissal Application form.

11      The applicant failed to appear at the directions hearing on Friday, 8 July 2022 and did not answer her telephone when called by my Associate during the directions hearing.

12      At the directions hearing of Friday, 8 July 2022, I ordered that the matter be listed for a hearing for the applicant to show cause why her application should not be dismissed.

13      Also, on 8 July 2022, my Chambers sent to the parties, by email, a copy of the orders made at the directions hearing, and a Notice of Hearing for today’s hearing.

14      On 14 July 2022, my Chambers sent the applicant a copy of the transcript from the directions hearing of Friday, 8 July 2022, again by email.

15      In response to that email, on Friday, 15 July 2022 the applicant wrote an email to my Associate saying ‘[a]pologies for the delayed response ‑ Could you please send me the forms that need to be actioned to have the matter closed…’. My Associate replied attaching a copy of the Form 1A ‑ Notice of Discontinuance on the same day.

16      On 22 July 2022, my Associate again wrote to the applicant, noting that a Form 1A ‑ Notice of Discontinuance had not yet been filed, requesting an update as to the status of the matter, and confirming that the matter remained listed for hearing today, Tuesday, 26 July 2022, and that the applicant is required to attend the hearing. The time and date of the hearing were again set out in my Associate’s email.

17      The applicant has not communicated further with the Commission, has not filed a Form 1A ‑ Notice of Discontinuance, and has not appeared today, Tuesday, 26 July 2022.

Consideration

18      It is sufficiently clear to me from the history I have recited, in particular the applicant’s general lack of any engagement with the Commission, together with the statement in her last email to the Commission concerning having the matter closed, that the applicant has no intention of continuing, progressing or prosecuting this claim.

19      Section 27(1)(a) of the IR Act empowers the Commission to dismiss any matter before it at any stage of the proceedings if satisfied:

(a) that the matter is trivial;

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

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

(d) that for any other reason the matter or part should be dismissed.

20      The Full Bench of the Commission has affirmed that it is not in the public interest that matters not be expeditiously dealt with: see Pietracatella v W.A. Italian Club (Inc) [2001] WAIRC 03509; (2001) 81 WAIG 2532 citing Kangatheran v Boans Limited (1987) 67 WAIG 1112. It is not only in the parties’ interests, but also in the interests of the public that matters before the Commission be resolved as efficiently as the justice of the case requires. If the applicant intends to progress this application, she has not done so with the necessary assiduity, promptness or diligence, and as a result, both the respondent and the Commission have incurred unnecessary expense in attempts to bring the matter to a resolution. That situation is prejudicial to the respondent and against the public interest.

21      In all of the circumstances, I am satisfied that the applicant has not taken any, or the appropriate, steps to prosecute her claim, that she does not intend to prosecute her claim, and it is therefore entirely appropriate that an order now issue that the application be dismissed under s 27(1)(a) of the IR Act.