CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00286

DELIVERED : Monday, 22 May 2023

FILE NO. : B 4 OF 2023

Applicant

AND

Paull & Warner Resources PTY LTD

Respondent

CatchWords : Industrial Law (WA) – Contractual Benefit Claim – Applicant failed to attend several conciliation conference listings and directions hearing – s 27(1)(a) – Applicant failed to diligently prosecute his claim – Further proceedings not in public interest – Application dismissed

Legislation : Industrial Relations Act 1979 (WA) 

Result : Application dismissed

Representation:   (on the papers)

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

1         The applicant in these proceedings, Mr Rhys Schoen, failed to attend two conciliation conferences, failed to attend a directions hearing and has not responded to various emails and letters sent to him by the Commission. Mr Schoen appeared disinterested in the proceedings and demonstrated an unwillingness to diligently prosecute his claim. His conduct was inhibiting the timely resolution of his claim, and the ability of the Commission to exercise its functions. For these reasons, I made an order requiring him to show cause why his claim should not be dismissed.

2         Under s 27(1)(a) of the Industrial Relations Act 1979 (WA), at any stage in the proceedings, the Commission may dismiss a matter if it is satisfied, amongst other things, that further proceedings are not necessary or desirable in the public interest. Applicants who invoke the Commission’s jurisdiction have a duty to prosecute their claims ‘assiduously’: Kangatheran v Boans Limited (1987) 67 WAIG 1112 at 1113. An applicant’s failure to act reasonably in prosecuting their claim can mean that the proceedings are not in the public interest: Pietracatella v W.A. Italian Club (Inc) [2001] WAIRC 03509; (2001) 81 WAIG 2532.

3         The relevant procedural history is set out below.

4         On 14 February 2023 Mr Schoen filed his application in the Commission, claiming the respondent, his ex-employer, had denied him a benefit due under his employment contract.

5         On 17 February 2023 the Commission wrote to the parties advising that Mr Schoen’s claim had been tentatively listed for a conciliation conference on Monday, 13 March 2023. The Commission advised the parties that if they had any issue with the listing date, they should advise the Commission by no later than 24 February 2023.

6         Having had no response from the parties indicating that there was any issue with the tentative conference date, on 27 February 2023, the Commission sent the parties a notice confirming the conciliation conference listing for Monday, 13 March 2023.

7         On Friday 10 March 2023 Mr Schoen emailed the Commission stating that due to work commitments, he was unavailable to attend the conciliation conference listed for Monday 13 March 2023. He requested the conference be postponed until his return to Perth after 30 March 2023.

8         On 10 March 2023, the Commission vacated the conference listed for Monday 13 March 2023 and sought the parties’ unavailable dates for an adjourned conciliation conference in April 2023. Mr Schoen responded to that email on the same day, advising he was available from the 1st to the 24th of April.

9         The Commission therefore listed the adjourned conference for Tuesday 4 April 2023 and emailed the parties on 13 March 2023 confirming this new listing.

10      On 31 March 2023 Mr Schoen wrote to the Commission advising that he was unable to attend the conference listed for Tuesday 4 April 2023 due to work commitments. He noted that taking time off work will leave him financially disadvantaged because his wages exceed the amount sought in these proceedings. In his email, he stated:

…

If you are unable to defer/postpone the hearing until I can provide more solid timeframe for availability, then I will have to reluctantly withdraw my claim/complaint.

11      My chambers responded to Mr Schoen’s email on 31 March 2023, including the following:

Under s 22B of the Industrial Relations Act 1979 (WA) (IR Act), the Commission must act with as much speed as the requirements of the IR Act and properly consider the matter before it permits.

If your email below is an application asking the Commission to defer dealing with your application indefinitely and without a new date for conciliation being set, that application is refused on the basis that it is inconsistent with the requirements of s 22B.

The Senior Commissioner is prepared to consider an application to reschedule the conciliation conference to a date no later than 24 April 2023, subject to anything the respondent has to say about any such application if it is made.

As such, please confirm whether you are applying to adjourn the conference to a later date, on or before 24 April 2023, at your earliest convenience.

12      Mr Schoen did not respond to this correspondence. He did not attend the conciliation conference on Tuesday, 4 April 2023.

13      On 4 April 2023, the Commission wrote to the parties noting that the Commission was obliged to endeavor to resolve matters referred to it by conciliation. Given the nonattendance at the conference listed on Tuesday 4 April 2023 I directed that, by 6 April 2023, both parties:

(a) provide an explanation for their failure to attend the conciliation conference of 4 April 2023; and

(b) indicate whether the party is prepared to participate in a conciliation conference or not. If not, why not;

(c) what if any arrangements are requested to optimise the prospects of conciliation resolving the matter?

14      Mr Schoen did not respond to this correspondence, contravening my direction.

15      The Commission therefore listed the matter for a directions hearing on Wednesday, 26 April 2023. Mr Schoen was sent notice of the directions hearing by email on 17 April 2023 to the email address for service specified in his application form, being the same address used by him to write to the Commission on 31 March 2023.

16      Mr Schoen did not attend the directions hearing. During the directions hearing, my associate was able to contact Mr Schoen by telephone. I granted him leave to participate in the directions hearing by telephone. During the directions hearing, Mr Schoen told the Commission he was inclined not to attend the Commission if it meant taking time off work because his financial loss from not attending work would exceed the amount he is claiming in these proceedings. However, he also said that he remained willing to attend a conciliation conference to endeavour to resolve his claim.

17      Because the respondent also advised the Commission that it remained willing to participate in conciliation, I adjourned the directions hearing to a conciliation conference.

18      After the directions hearing my chambers wrote to Mr Schoen seeking his availability for the purpose of listing a conciliation conference. By return email, Mr Schoen advised that he was available from 11 to 31 May 2023. A conference was therefore listed for Monday 15 May 2023.

19      Notice of the conciliation conference was sent to Mr Schoen by email on 26 April 2023.

20      Mr Schoen failed to attend the conciliation conference on Monday 15 May 2023. He did not contact the Commission either before, during or after the conference to provide notice of, or an explanation for, his nonattendance.

21      At that conciliation conference, the respondent applied to have the matter dismissed. I made orders providing Mr Schoen until 19 May 2023 to file any submissions and documents to show cause why his application should not be dismissed, and ordering that the application for dismissal be dealt with on the papers: [2023] WAIRC 00273.

22      A copy of the orders was sent to Mr Schoen by email on 15 May 2023.

23      Mr Schoen did not file anything. He has made no contact with the Commission.

24      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. Where a party fails to participate proactively in achieving this goal, their conduct has an effect on the Commission’s publicly funded resources as well as on the other parties to matters before the Commission, who are effectively competing for those resources. It is not in the public interest to tolerate inefficiencies in the use of the Commission’s resources. Such inefficiencies are liable to erode public confidence in the Commission.

25      Mr Schoen has not participated in proactively prosecuting his claim. He has simply sat back and allowed the waste of public resources and inconvenience to the respondent in attempts to bring the matter to a resolution. There is a real risk that allowing the claim to remain on foot will result in further waste and unfairness to the respondent, so that further proceedings in this matter is not desirable in the public interest.

26      I dismiss the claim.