UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Garbriella Blume

APPLICANT

-v-

Hillview Golf Course

RESPONDENT

CORAM Commissioner T B Walkington

DATE (CORRIGENDUM FRIday, 21 February 2025)

FILE NO/S U 10 OF 2022

CITATION NO. 2025 WAIRC 00107

CORRIGENDUM

1. On the first page of the Reasons for Decision dated 30 January 2025 [2025] WAIRC 00046, under the heading Case(s) referred to in reasons: insert before the case The Australian Worker’s Union, Western Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Platonic Project (2000) 80 WAIG 3162, the following:

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

2. At paragraph [14] of the Reasons for Decision dated 30 January 2025 [2025] WAIRC 00046 delete paragraph [14] and insert in lieu thereof the following:

[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].

3. At paragraph [15] of the Reasons for Decision dated 30 January 2025 [2025] WAIRC 00046, delete paragraph [15] and insert in lieu thereof the following:

[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.

4. At paragraph [16] of the Reasons for Decision dated 30 January 2025 [2025] WAIRC 00046, delete paragraph [16] and insert at in lieu thereof the following:

[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.

5. At paragraph [17] of the Reasons for Decision dated 30 January 2025 [2025] WAIRC 00046, delete paragraph [17] and insert in lieu thereof the following:

[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.

6. At paragraph [18] of the Reasons for Decision dated 30 January 2025 [2025] WAIRC 00046, delete paragraph [18] and insert in lieu thereof the following:

[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.

COMMISSIONER T B WALKINGTON

Dated:  20 FEBRUARY 2025