UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00046

DELIVERED : thursday, 30 january 2025

FILE NO. : U 10 OF 2022

Applicant

AND

HILLVIEW GOLF COURSE

Respondent

CatchWords : Unfair dismissal claim – Applicant's lack of communication – Application dismissed for want of prosecution

Legislation : Industrial Relations Act 1979 (WA) s 27(1)

  Industrial Relations Commission Regulations 2005 (WA) reg 24(2)(d) and reg 25(3)

Result : Application dismissed for want of prosecution

Representation:

Applicant : No appearance

Respondent : No appearance

Case(s) referred to in reasons:

Robin James Ingram v VP Lowe Freight [2022] WAIRC 00060

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

Reasons for Decision

Background

1         Ms Garbriella Blume (the applicant) filed an unfair dismissal claim on 21 January 2022.

2         On 2 February 2022 the representative of the respondent telephoned the Registry to advise that he believed the claim ought not be accepted because it concerned the COVID-19 mandate and that he was recording the phone conversation and was planning to discuss the matter on radio later that day. The respondent advised that he did not intend to respond to the claim.

3         On 11 February 2022 the respondent emailed the Commission to confirm he would not participate in proceedings.

4         Following further communications from the respondent, on 22 February 2022 the Commission emailed the respondent to inform him that his communications were threatening and not appropriate and he should desist from conducting himself in this manner.

5         A conciliation conference was scheduled for 30 March 2022.

6         The respondent informed the Commission he was unable to attend the conciliation conference.

7         Considering the various communications received by the Registry and the Commission from the respondent, the Commission formed the view that conciliation would not assist the resolution of the application.

8         A directions hearing was listed for 13 April 2022.

9         Following the directions hearing the following orders ([2022] WAIRC 00154) were issued:

1. THAT the applicant file an amended application by 27 April 2022;

2. THAT the respondent may file a response to the amended application by 2 May 2022;

3. THAT the applicant file and serve any outlines of witness evidence and documents upon which she intends to rely by no later than 17 August 2022;

4. THAT the respondent file and serve any outlines of witness evidence and documents upon which they intend to rely by no later than 21 September 2022;

5. THAT the applicant file and serve an outline of submissions and any list of authorities upon which she intends to rely by no later than 5 October 2022;

6. THAT the respondent file and serve an outline of submissions and any list of authorities upon which they intend to rely by no later than 19 October 2022;

7. THAT the matter be listed for hearing on a date not before 26 October 2022;

8. THAT the parties have liberty to apply on short notice.

10      The applicant did not file an amended application.

11      On 3 May 2022 the Commission emailed the parties to confirm the applicant had not filed an amended application and sought the applicant’s advice on how she wished to proceed.

12      The Commission sought the applicant’s advice on how she wished to proceed again and emailed the parties on 27 May 2022, 19 August 2022 and 23 April 2024.

13      On 2 August 2024 the Commission notified the parties that the matter was listed for a show cause hearing on Monday, 4 November at 10:30 am. The parties were informed the show cause hearing is listed for the applicant to show cause why this matter ought not be dismissed pursuant to s 27(1) of the Industrial Relations Act 1979 (WA) (IR Act).

The law

14      In Robin James Ingram v VP Lowe Freight [2022] WAIRC 00060 (Ingram) the Commission dismissed an application for denied contractual benefits in similar circumstances to those in this matter. In Ingram, Emmanuel C said:

[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].

15      In Ingram [13] the applicant did not appear at the show cause hearing and the Commission proceeded to hear and determine the matter observing s 27(1)(d) of the IR Act provides the power to do so when a party to the matter has been duly served in accordance with reg 24(2)(d) Industrial Relations Commission Regulations 2005 (WA) (IR Regulations). The Commission noted [14] that service can be effected on the applicant by sending the notice of hearing as an attachment to an email sent to the email address that the applicant has provided to the Commission: reg 25(3) of the IR Regulations.

Consideration

16      Further in Ingram the Commission said:

[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.

17      Like Ingram, the applicant was served in accordance with the IR Regulations and I am satisfied that, despite the lack of appearance by the applicant, that this matter may be heard and determined. The applicant has failed to prosecute her claim. The applicant was notified that her application may be dismissed if she did not attend the hearing. The applicant has not provided any reasons for failing to comply with the Commission's directions and for the delay in progressing her application.

18      There is no evidence before me about the hardship to the applicant if her application is dismissed, nor about the prejudice to the respondent if the application is allowed to proceed. Whilst the respondent’s conduct in these proceedings has been uncooperative and at times aggressive this does not negate the need for the applicant to progress her claim. The applicant has not raised concerns about the respondent’s conduct. I find the applicant has failed to prosecute her case without good reason and her application should be dismissed.

19      For these reasons, an Order under s 27(1)(a) of the IR Act dismissing this matter will issue.

NOTE: Case citation number 1 of Case(s) referred to in reasons and paragraphs  [14], [15], [16], [17] and [18] amended by Corrigendum issued 21 February 2025 [2025] WAIRC 00107.