APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER APPL 91/2024 GIVEN ON 11 JUNE 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2025 WAIRC 00237

DELIVERED : MONDay, 14 April 2025

FILE NO. : FBA 16 OF 2024

Appellant

AND

A Team Cleaning Services Pty Ltd

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : COMMISSIONER T EMMANUEL

Citation : [2024] WAIRC 00290

File No : APPL 91 OF 2024

Catchwords : Industrial Law (WA) - Appeal against decison of Commission - Claim for equal remuneration order dismissed following applicant not attending show cause hearing - Failure to prosecute application at first instance - Appeal principles applied - No error demonstrated - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 49, s 49(4)(a), s 60A  

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr T Magorwa

Case(s) referred to in reasons:

House v The King [1936] HCA 40; (1936) 55 CLR 499

Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595

Smith v A Team Cleaning Services Pty Ltd [2024] WAIRC 00290

Reasons for Decision

THE FULL BENCH:

Brief background

1         The appellant commenced a claim at first instance, ostensibly under s 60A of the Industrial Relations Act 1979 (WA), for an equal remuneration order, on a Form 1 – General Application.  However, the substance of the application suggested that the appellant was seeking the recovery of wages for work performed for the respondent, and for which she claimed she was not paid.  As a consequence of events in relation to the application at first instance, the learned Commissioner listed the appellant’s application for a hearing to show cause why it should not be dismissed for want of prosecution on 11 June 2024.  The recitals to the order made on that day (Smith v A Team Cleaning Services Pty Ltd [2024] WAIRC 00290) reveal that the application was listed for show cause for a variety of reasons as follows:

AND WHEREAS Ms Smith has shown a general pattern of behaviour of not progressing her application for some weeks, has not contacted the Commission, has not complied with directions from the Commission nor emails from Registry or the Commission and did not attend the hearing today. The Commission considers that Ms Smith has had ample opportunity to prosecute her application but has not done so. In the circumstances, the Commission considers Ms Smith is not prosecuting her application and application APPL 91 of 2024 should be dismissed under s 27(1)(d) of the Industrial Relations Act 1979 (WA) for want of prosecution;

2         The learned Commissioner also referred in the recitals to the order, to the notice provided to the appellant that should she not appear at the show cause proceedings, then the application would be dismissed for want of prosecution. The appellant did not appear at the show cause hearing and the application was dismissed.

The appeal

3         The appellant has appealed against the order issued by the learned Commissioner dismissing her application.  The sole basis for the challenge to the order was that the appellant was unable to attend the hearing on 11 June 2024, because a family member had passed away earlier that day.  No other reasons were advanced by the appellant as to why the appeal should be upheld.  In particular, the appellant did not challenge any of the learned Commissioner’s findings in the extract from her order set out above.  That is, there was no challenge by the appellant that she had not conducted the application at first instance with all due expedition, had failed to make contact with the Commission or the Registry, or respond to communications from the Registry or the Commission, and that she did not comply with directions issued by the Commission in connection with her claim.

Consideration

4         As this appeal is from a discretionary decision of the Commission, the approach to determining the appeal is well established. In Magyar v Department of Education [2019] WAIRC 00781; (2019) 99 WAIG 1595 in the decision of the Full Bench, I observed as follows at [12]:

[12] Given that the three appeals before the Full Bench arise from a discretionary decision of the Commission at first instance, the well-known principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply. That is, it is not sufficient for an appellant to persuade the Full Bench that it should reach a different decision to that of the learned Commissioner. It is necessary that the appellant establish an error in the exercise of the Commission’s discretion, such as the learned Commissioner acting upon a wrong principle; making a material mistake in relation to the facts; failing to take into account relevant considerations or taking into account irrelevant considerations; or allowing extraneous or irrelevant matters to affect his decision making: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2003) 203 CLR 194. Kirby J in Coal and Allied at par 72, emphasised that an appeal court, considering an appeal from a discretionary decision, should proceed with appropriate caution and restraint.

5         It is also the case that subject to very limited exceptions, not relevant for present purposes, an appeal under s 49 of the Act is to be heard and determined on the evidence and matters raised in the proceedings before the Commission (s 49(4)(a)).

6         What the learned Commissioner had before her at first instance was a circumstance where an applicant in proceedings before the Commission, had not shown diligence in the conduct of her claim. As we have already observed, the learned Commissioner’s findings that she made, set out above, were not challenged on the appeal.  The only challenge related to the appellant’s failure to appear at the show cause proceedings on 11 June 2024.

7         Whilst the appellant submitted to the Full Bench that given the circumstances she described in her notice of appeal meant she could not appear before the Commission on 11 June 2024, there was, at the least, an opportunity to inform the learned Commissioner’s Chambers or the Registry, prior to the commencement time of the hearing, of her difficulties on that day.  No such attempt was made.  Nor was there any attempt made by a person on behalf of the appellant.  It was clear on the material before the learned Commissioner, that well prior  to the hearing on 11 June 2024, the appellant had been informed that the application was going to be listed for a hearing for show cause why it should not be dismissed.  The appellant was also notified that should she fail to appear at the hearing, then the application would be dismissed.  This should have made it very clear to the appellant, the importance of her attendance at the hearing on 11 June 2024, or, that if for whatever reason she could not do so, the importance of communicating that to the Commission before the hearing commenced.

8         From all that was before the learned Commissioner, we are not persuaded that the appellant has established that there was any error made by the Commission in its decision to dismiss the appellant’s claim.  The conclusions reached by the learned Commissioner were all reasonably open to her, on what was before the Commission.  In the absence of any appealable error being demonstrated by the appellant, as required by House v King, the Full Bench should dismiss the appeal, which we would do.

9         We would add that the circumstances for the appellant were obviously unfortunate. However, this case highlights the importance of parties to proceedings before the Commission, to promptly communicate with the Commission or the Registry, any difficulties in relation to a required appearance, especially where the consequences of not doing so may lead to a dismissal of proceedings, as in this case.

10      The appeal is dismissed.