UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00717

DELIVERED : friday, 14 OCTOBER 2022

FILE NO. : U 63 OF 2021

Applicant

AND

Shire of Halls Creek

Respondent

CatchWords : Termination of employment; unfair dismissal; failure to prosecute claim; no appearance by applicant

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

Result : Application dismissed for want of prosecution

Representation:

Applicant : No appearance

Respondent : Mr A Sinanovic (of counsel)

Case(s) 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

1         Ms Emily Elizabeth Mae Gibson had been employed by the Shire of Halls Creek (the Shire) from 7 December 2020 to 26 July 2021 as a Ranger.

2         Ms Gibson made an application on 10 August 2021 claiming she had been unfairly dismissed by the Shire because she had not been afforded due process.  Ms Gibson seeks compensation.

3         The Shire opposes the application and contends that Ms Gibson’s employment was terminated because Ms Gibson had failed to appropriately advise her employer of her non-attendance, concerns for her conduct and performance.  The Shire contended that it had conducted its deliberations and engagement with Ms Gibson in a fair manner.

4         The case management of this application has some history.

5         On 26 August 2021 the parties’ availability to attend a conciliation conference was sought.  A second request to the applicant was required before a response was provided.

6         On 7 September 2021 the Commission notified the parties of a conciliation conference scheduled for 21 September 2021 in accordance with their availability.

7         Ms Gibson failed to attend the conciliation conference.  On the evening of 23 September 2021 Ms Gibson advised the Commission that she had understood the conciliation conference was scheduled on 23 September 2021 and not 21 September 2021.  Ms Gibson advised she had not been able to attend the conciliation conference because she had been required to attend to an urgent and unforeseen task at work.  Ms Gibson requested a second conciliation conference be scheduled.

8         Ms Gibson again failed to respond to the first request for her available dates for the rescheduled conciliation conference and a second request was required to elicit this information.

9         On 7 October 2021 the parties were notified of a second conciliation conference on 27 October 2021 in accordance with their availabilities.  The parties did not reach a settlement at the conciliation conference and Ms Gibson requested the matter be heard and determined by the Commission.

10      On 18 November 2021 the parties were notified of a directions hearing on 8 December 2021.  On the morning of the scheduled directions hearing, Ms Gibson notified the Commission by email that she was unable to attend the directions hearing and enquired if the date could be changed.

11      The Shire opposed the adjournment of the directions hearing on the basis that the onus is on Ms Gibson to prosecute her claim with due expedition, and not to hinder the Commission’s statutory objectives of acting with due speed (s 22B of the Industrial Relations Act 1979 (IR Act) and resolving disputes ‘with the maximum of expedition’ (s 6(c) of the IR Act)); the applicant previously failed to attend a conciliation conference scheduled for 21 September 2021 and the conciliation conference was subsequently re-listed for 27 October 2021.  The applicant had been given almost four weeks’ notice of the directions hearing.  The applicant’s request comes hours before the directions hearing and without any evidence or explanation.  In the context of the history of this matter including the applicant’s failure to attend a previous listing, the respondent opposed any adjournment of the directions hearing.

12      The parties were notified that the Commission directed that the directions hearing would proceed as listed for later that day.

13      Ms Gibson did not attend the directions hearing.  The respondent attended.

14      On 8 December 2021, the Commission emailed the parties confirming the directions hearing proceeded and outlined the purpose of the directions hearing and requested Ms Gibson inform the Commission on how she wished to progress her application.

15      On 22 December 2021, the Commission emailed Ms Gibson noting that a response to the request made on 8 December 2021 had not been received and sought a response.  Ms Gibson was advised that in the event she did not reply, the Commission may list this matter for a show cause hearing and that she would need to show cause as to why her application ought not be dismissed pursuant to s 27(1) of the IR Act.

16      On 24 December 2021 Ms Gibson responded with ‘I wish to continue the matter to a hearing’.

17      On 5 January 2022 the parties were directed to confer on programming of the matter to hearing on the following matters:

(a) The need for discovery and the manner of such (informal/formal);

(b) The number of witnesses the parties intend will give evidence;

(c) Preferences for either outlines of witness evidence or signed witness statements;

(d) Whether the parties shall file outlines of submissions prior to the hearing.

The parties were advised that if they reached an agreement on the matters a Minute of Proposed Direction would be prepared.   The parties were further advised that if they had not reached agreement by 26 January 2022, a further directions hearing would be set down.

18      On 20 January 2022 the Shire emailed Ms Gibson and advised that she had not responded to their attempts made on 10 and 14 January 2022 to arrange a suitable time to confer.  The Shire set out its position on the matters raised by the Commission and sought Ms Gibson’s position.  The Shire notified Ms Gibson that if she did not respond, a request would be made for the Commission to list this matter for a show cause hearing.

19      On 27 January 2022 the Shire requested that the Commission convene a hearing for the applicant to explain why her application should not be dismissed.  The Shire contended that the applicant has not taken any steps to progress her claim since 27 October 2021 and that Ms Gibson had failed to prosecute her claim with due diligence.

20      On 28 January 2022 the parties were notified that a show cause hearing was listed for 18 March 2022.

21      At the show cause hearing, Ms Gibson submitted that she had consulted with a lawyer about the communications she had received from the Shire and had been advised not to respond to their communications.  Ms Gibson advised that she had been confused by recent communications and was unsure about what to do.  Ms Gibson advised that she intended to obtain legal advice to assist her to navigate the process.

22      The Commission declined to dismiss the application and directions to progress the matter to hearing were issued on 18 March 2022.

23      On 12 April 2022 the respondent requested the Commission list the matter for a hearing for Ms Gibson to show cause as to why her application ought not be dismissed because the applicant had failed to comply with the Commissioner’s direction to file and serve any outlines of witness evidence and any documents upon which she intended to rely by the due date.  The Shire submitted that the applicant’s non-compliance was aggravated in circumstances where the Commissioner indicated during the show cause hearing that the applicant is being allowed to pursue her claim by the slimmest of margins following repeated failures to prosecute her claim over an extended period.  Further, the Commissioner indicated to the parties that, to the extent any extensions to any of the deadlines are needed, the party seeking the extension would need to seek the extension in advance of the deadline expiring.  The applicant had not yet responded to the Commission’s email concerning dates for a final hearing.  The failure to respond is consistent with the applicant’s previous failures to respond to the Commission’s emails.

24      On 13 April 2022 the parties were notified by email that the matter was listed for a show cause hearing for Friday, 12 August 2022 at 10:30am.  The parties were advised that the show cause hearing was listed for the applicant to show cause why this matter ought not be dismissed pursuant to s 27(1) of the IR Act.  On 19 April 2022 the notice of hearing was also posted to Ms Gibson.

25      On 17 May 2022 the parties were notified by email that the show cause hearing had been rescheduled and the matter was now listed for a show cause hearing for one week later on Friday, 19 August 2022 at 10:30am.  On 17 May 2022 the notice of hearing was also posted to Ms Gibson.

26      On 19 August 2022 Ms Gibson did not attend the hearing.  The respondent attended the hearing.

The Law

27      The Commission can dismiss a matter under s 27(1)(a) of the 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;

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

Should This Application Be Dismissed?

29      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 Ms Gibson in this matter was effected by leaving the notice at, or sending it by pre-paid post to, Ms Gibson’s usual or last known place of abode: r 24(2)(d) of the Industrial Relations Commission Regulations 2005 (WA) (IR Regulations).

30      Alternatively, service was effected on Ms Gibson by sending the notice of hearing as an attachment to an email sent to the email address that Ms Gibson had provided to the Commission, in accordance with r 25(3) of the IR Regulations.

31      I am satisfied that Ms Gibson has been duly served with notice of these proceedings and the Commission may proceed with the hearing in her absence.

32      Ms Gibson has not contacted the Commission since her email advising that she wished to progress her matter.  Ms Gibson has not responded to the emails sent to her by my Associate or attended the show cause hearing on 19 August 2022.

33      There has been a relatively long delay in the context of this application and there has been no explanation for that delay.  There is no evidence of hardship to Ms Gibson if her application is dismissed; and there is nothing before the Commission to suggest the respondent’s conduct in the matter has in any way contributed to Ms Gibson’s failure to prosecute this application.

34      The onus rests with a party initiating proceedings to prosecute those proceedings diligently.  Where the Commission requires advice to be provided within given time frames for the purpose of the matter being dealt with expeditiously, it is not the role of the Commission to continue to pursue parties to ascertain the status of matters.  It is the responsibility of the applicant to progress the application.  The applicant has not met the onus which falls to her and has not pursued this matter appropriately.

35      In the circumstances, I find that Ms Gibson has not prosecuted her application at the Commission.  I will order that this application be dismissed under s 27(1)(a) of the IR Act.