UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00392

DELIVERED : MONday, 24 July 2023

FILE NO. : U 25 OF 2022

Applicant

AND

The Trustee for Reilly Trust

Respondent

CatchWords : Unfair dismissal – termination of employment – application referred outside of 28 day limit – application out of time – responsibility of applicant to progress the application – failure to prosecute application.

Legislation : Fair Work Act 2009 (Cth)

  Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

Result : Application dismissed

Representation:

Applicant : Ms C Murdoch (in person)

Respondent : Mr T McDonald (of counsel)

Case(s) referred to in reasons:

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

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 Carla Murdoch was employed by the Trustee for Reilly Trust (Reilly Trust) from 14 May 2017 to mid-November 2021 as a Recruitment Manager.

2         Ms Murdoch made an application to the Western Australian Industrial Relations Commission (WAIRC) on 22 February 2022 claiming she had been unfairly dismissed. Ms Murdoch seeks compensation, to substitute a resignation for the dismissal and a statement of service. Ms Murdoch was initially represented by Unfair Dismissal Experts Pty Ltd.

3         The Reilly Trust objects to the WAIRC accepting the application because the claim was made 81 days after her dismissal on 15 November 2021.

4         Ms Murdoch contends that she initially lodged an application for unfair dismissal with the Fair Work Commission (FWC) on 19 November 2021 within the twenty one day limit set out in s 366(1)(a) of the Fair Work Act 2009 (Cth) (FW Act). Ms Murdoch asserts that the Reilly Trust had instructed her that the FWC was the appropriate authority. Subsequently, on 17 December 2021, the Reilly Trust objected to her claim on the basis that it was not an incorporated entity and the FWC did not have jurisdiction to hear and determine the claim. Ms Murdoch says, in these circumstances the Commission ought to accept her claim.

Background

5         The applicant was dismissed from her employment with the respondent on 15 November 2021 and subsequently filed an unfair dismissal application in the FWC on 19 November 2021, through her legal representatives Unfair Dismissal Experts Pty Ltd. This unfair dismissal application filed on behalf of the applicant acknowledged that the respondent was unincorporated and that the applicant was engaged in Western Australia.

6         The Reilly Trust responded on 17 December 2021, objecting to the application on the basis that the FWC did not have jurisdiction to hear the application due to the respondent not being an incorporated entity and the applicant being engaged in Western Australia.

7         On 12 January 2022, the FWC wrote to the parties requesting that the applicant provide an outline of the reasons why she considered that she was employed by a national system employer.

8         On 19 January 2022, the applicant's representatives responded to the FWC using a one-line response opposing the jurisdictional objection and asserted the Reilly Trust was a national system employer.

9         On 20 January 2022, the FWC contacted the applicant and the respondent, outlining the eligibility requirements to bring a case in the FWC, including that the employer must be a national system employer and provided a definition for a national system employer. The FWC informed the parties that should the applicant wish to discontinue her FWC application, she should complete the relevant form and forward it to the FWC by 27 January 2022. The correspondence went on to say that if the applicant wished to proceed with the application, she was required to provide particular documents in relation to the respondent's jurisdictional objection by 27 January 2022.

10      No response was received from the applicant or her representatives by 27 January 2022.

11      On 1 February 2022, the FWC again contacted the parties, stating that the applicant would be required to seek an extension to file her materials which needed to be provided to the FWC by 2 February 2022.

12      On 2 February 2022, the respondent filed an application seeking that the application be dismissed under s 399A of the FW Act. The respondent filed this application on the basis that the applicant had failed to comply with a direction of the FWC and again raised its jurisdictional objection, being that the Reilly Trust was not a company.

13      On 2 February 2022, the FWC wrote to the parties, addressing the respondent's s 399A application and inviting the applicant to make submissions as to why the application should not be dismissed. This response was required by 4 February 2022.

14      On 4 February 2022, the applicant's representatives informed the FWC that the claim was being discontinued and an application lodged with the WAIRC. The application was not able to be filed and served until 22 February 2022 because of a delay in the payment of the filing fee.

Preliminary Matter – Acceptance Out of Time

15      The Commission determined that the question of whether to accept Ms Murdoch’s claim out of time must be determined as a preliminary matter. On 25 March 2022, notices of a directions hearing for 31 May 2022 to program the preliminary issue were issued to parties.

16      The relevant section of the Industrial Relations Act 1979 (WA) (IR Act) provides that:

29. Who may refer industrial matters to Commission

(1) An industrial matter may be referred to the Commission —

 …

(c) in the case of a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employee’s employment — by the employee;

…

(2) Subject to subsection (3), a referral under subsection (1)(c) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3) The Commission may accept a referral by an employee under subsection (1)(c) that is out of time if the Commission considers that it would be unfair not to do so.

17      The Commission in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683, sets out the factors to be assessed to determine whether an extension of time is to be granted. The factors are the length of the delay, the reasons for the delay, merits of the claim, prejudice to the respondent, fairness between applicants and other persons in similar circumstances and whether the applicant has taken action other than filing an application to contest the dismissal.

18      On 23 May 2022 the applicant’s representative, Unfair Dismissal Experts Pty Ltd, filed a notice advising they ceased to act for Ms Murdoch. On the same day an officer of the WAIRC’s Registry telephoned Ms Murdoch to advise that her representative had filed a notice to cease acting and requested her contact details. Ms Murdoch informed the Registry Officer that she was not aware that her representative had filed a notice to cease acting and provided her direct contact details.

19      On 25 May 2022 the parties were advised by email that the directions hearing for programming the hearing and determination of the preliminary matter remained listed for the morning of 31 May 2022.

20      On the morning of 31 May 2022, Ms Murdoch emailed the Commission stating that the email dated 25 May 2022 had been delivered to her junk folder and that she was unable to attend the hearing and requested the hearing be cancelled.

21      On 8 June 2022 the parties were provided with a minute of proposed directions and advised that they should provide their views on the minute to the Commission by 15 June 2022.

22      On 9 June 2022, the respondent sought an amendment to the proposed directions, for the inclusion of an additional direction seeking that Ms Murdoch notify the Commission as to whether she is proceeding with her application.

23      On 23 June 2022, the Commission emailed Ms Murdoch requesting that she advise her intentions in relation to her application including whether she wished to continue and if so to respond to the minute of proposed directions and the amendment sought by the respondent.

24      On 25 July 2022 the respondent emailed the Commission and Ms Murdoch advising that they had not seen a response from Ms Murdoch and sought an update on the status of the matter.

25      On 27 July 2022 the Commission emailed the parties confirming it had not received any communication from Ms Murdoch and requested that Ms Murdoch advise of her intentions in relation to progressing her application by 4 August 2022. The Commission did not receive a response to this request.

26      On 15 August 2022 the Commission notified the parties by email that the application would be listed for a hearing on 13 October 2022 for Ms Murdoch to show cause why her application ought not be dismissed pursuant to s 27(1) of the IR Act. The notification of hearing was also posted to Ms Murdoch’s residential address. On 6 September 2022 the notification posted to Ms Murdoch was returned to the Commission marked ‘not at this address’.

27      On 12 September 2022 the Commission’s Associate attempted to contact Ms Murdoch by telephone. There was no answer, and a voicemail was left on Ms Murdoch’s voicemail facility.

Application Dismissed for Want of Prosecution

28      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 of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part 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 of it discontinued, as the case may be;

29      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?

30      Ms Murdoch did not appear at the show cause hearing. 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.

31      Service was affected on Ms Murdoch by sending the notice of hearing as an attachment to an email sent to the email address that Ms Murdoch had provided to the Commission, in accordance with r 25(3) of the Industrial Relations Commission Regulations 2005 (WA).

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

33      Ms Murdoch has not contacted the Commission since her email on 31 May 2022 advising that she was unable to attend a direction hearing that morning. Ms Murdoch has not responded to the emails sent to her requesting she advise her intentions in relation to progressing her application. Ms Murdoch has not responded to a voicemail requesting she return the call made by my Associate. Ms Murdoch has not attended the show cause hearing.

34      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 Murdoch 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 Murdoch’s failure to prosecute her application.

35      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.

36      In these circumstances, I find that Ms Murdoch 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.