UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00111

DELIVERED : Friday, 21 February 2025

FILE NO. : U 75 OF 2024

Applicant

AND

Vanessa Louise Hilton, Barry Phillipson, Cory Marc Phillipson as the trustees for the Rustico Unit Trust

Respondent

CatchWords : Termination of employment – Unfair dismissal – Failure to prosecute claim – No appearance by applicant

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a)(iii)                                       Industrial Relations Commission Regulations 2005 (WA) reg 24(2), and reg 25(2)                                                                                         Australian  Constitution s 51(xx)                  

Result : Application dismissed for want of prosecution

Representation:

Applicant : No appearance

Respondent : Ms Katie Jackson (of counsel)

Reasons for Decision

1         Ms Amy Puttick (the applicant) filed an unfair dismissal claim on 14 August 2024 against Vanessa Louise Hilton, Barry Philipson, Cory Mac Phillipson as the trustees for the Rustico Unit Trust. The applicant described the respondent as a partnership.

2         On 9 September 2024 the respondent filed a response stating that the applicant had named the employing entity incorrectly. The correct name is that listed on the trust deed being ‘Rustico Tapas Pty Ltd’. A copy of the trust deed was attached to the response. The respondent says that the applicant’s written contract of employment lists the employer as ‘Rustico Tapas Pty Ltd ATF The Rustico Unity Trust trading as Rustico Tapas’. A copy of the employment contract with the applicant was attached to the response.

3         In its written response, the respondent objected to the Commission’s jurisdiction on the basis that it is a trading corporation for the purposes of s 51 of The Australian Constitution and is therefore a national system employer for the purposes of s 14(1)(a) of the Fair Work Act 2009 (Cth). Consequently, the Fair Work Act applies to the respondent excluding the Industrial Relations Act 1979 (WA) (Act), and the Commission does not have jurisdiction to hear the applicant’s claim.

4         On 10 September 2024 the applicant was served with a copy of the respondent’s response and attachments.

5         On 13 September 2024 the applicant was requested to provide her views on the respondent’s jurisdictional objection and whether she agreed that the respondent was a trading corporation or otherwise. The applicant did not respond to this request.

6         On 21 January 2025 the Commission emailed the applicant, referring to the previous email, to again request the applicant’s views on the respondent’s jurisdictional objection and how to proceed with her application. The applicant did not respond to this request.

7         On 31 January 2025 the parties were notified that a hearing was listed for 20 February 2025 at 2:15 pm. The email to the parties attaching the notice of hearing stated the hearing was a show cause hearing for the applicant to show cause why the matter ought not be dismissed pursuant to s 27(1) of the Act. The email stated that should the applicant not attend the show cause hearing, an order may issue dismissing the application for want of prosecution.

8         I am satisfied the applicant was served notice of the hearing in accordance with reg 24(2) of the Industrial Relations Commission Regulations 2005 (WA) (Regulations). This was done on 31 January 2025. I note that reg 25(2) provides that service can be effected 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.

9         In these circumstances I am satisfied that, despite the lack of appearance by the applicant at the hearing, the matter may be heard and determined. 

10      Section 27(1)(a)(iii) of the Act provides the power for the Commission to dismiss an application where the person who referred the matter to the Commission does not have sufficient interest in the matter.

11      The applicant was notified that her application may be dismissed if she did not attend the hearing. The applicant did not attend the hearing. The applicant has not provided any reasons for failing to respond to requests from the Commission to provide her views on the respondent’s jurisdictional objection and how to progress her application.

12      I find the applicant has failed to prosecute her case without an adequate reason and, given the applicant’s lack of response to communications from the Commission and her failure to appear at the hearing, conclude that the applicant does not have sufficient interest in the matter.

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