2025 WAIRC 00746

[2025] WASCA 130

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION : PALALOI -v- DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2025] WASCA 130

CORAM : MITCHELL J
SEAWARD J
SMITH AUJ

HEARD : 1 SEPTEMBER 2025

DELIVERED : 1 SEPTEMBER 2025

PUBLISHED : 2 SEPTEMBER 2025

FILE NO/S : IAC 4 of 2024

BETWEEN : IDA PALALOI
Appellant

AND

DIRECTOR GENERAL DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent



ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : CHIEF COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL
COMMISSIONER T B WALKINGTON
Citation : [2024] WAIRC 00991
File Number : FBA 9 of 2024



Catchwords:

Industrial Relations - Where Industrial Relations Commission dismissed the appellant's unfair dismissal claim on the basis that the appellant had engaged in misconduct by sending intimidating and harassing messages to a potential witness - Where Full Bench of the Commission dismissed the appellant's appeal against the dismissal of her unfair dismissal claim - Whether the appellant has advanced any permissible grounds of appeal to the Industrial Appeal Court - Turns on own facts

Legislation:

Industrial Relations Act 1979 (WA), s 27(1)(a), s 35, s 90(1)

Result:

Application by notice of motion dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant
:
In person
Respondent
:
D J Anderson

Solicitors:

Appellant
:
In person
Respondent
:
State Solicitor for Western Australia

Case(s) referred to in decision(s):


BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49; (2006) 151 IR 361
Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104
Palaloi v Director General, Department of Education [2024] WAIRC 00108
Palaloi v Director General, Department of Education [2024] WAIRC 00991
Palaloi v Director General, Department of Education [2024] WAIRC 01009

Page 1
[2025] WASCA 130
REASONS OF THE COURT
REASONS OF THE COURT:

1 At the conclusion of the hearing of this appeal and the appellant's application in the appeal by notice of motion filed on 9 May 2025, we ordered that the appeal and application be dismissed. We said that we would publish written reasons for making those orders later. These are our reasons for making the orders.
Background
2 On 30 January 2023, the appellant commenced employment with the respondent as a teacher at a regional high school. Her full-time employment was subject to a 12-month probationary period. On 17 May 2023, the appellant's probationary employment was terminated on the ground that she was not suitable or compatible with the role of a teacher. Several allegations of inappropriate conduct by the appellant towards her students, which had previously been communicated to the appellant, formed the basis of this conclusion. One of those allegations was that, on 10 February 2023, the appellant pushed and then kicked a chair at one of her female year 8 students, who it is convenient to refer to as SD.
3 On 13 June 2023, the appellant lodged an unfair dismissal application with the Western Australian Industrial Relations Commission, seeking reinstatement to her position (Appellant's Application). By this application, the appellant sought to engage the Commission's jurisdiction under s 23A of the Industrial Relations Act 1979 (WA) (Act). On 27 November 2023, the appellant filed her witness statement in the unfair dismissal proceedings which included, as an attachment, copies of text messages which she said had been received from 'someone who called herself [SD]' on 15 September 2023. Par 63 of the appellant's witness statement filed 27 November 2023.

4 On 15 December 2023, the respondent applied for an order that the Appellant's Application be dismissed under s 27(1)(a)(iv) of the Act, which relevantly provides:
[T]he Commission may, in relation to any matter before it -
(a) at any stage of the proceedings dismiss the matter … if it is satisfied -
…
(iv) that for any other reason the matter … should be dismissed[.]
5 The respondent's application was advanced on the basis that the appellant acted improperly in communicating with SD, who was an anticipated witness in the unfair dismissal claim.
6 Pursuant to an order made by the Commissioner on 20 December 2023, on 9 January 2024 the appellant lodged a statutory declaration with the Commission which stated: Although the order provided for the appellant to file an affidavit rather than a statutory declaration, and mention is made of the issue in the appeal notice, nothing turns on this difference for the purposes of this appeal.

Text messages copies of my conversation with [SD] on Friday 15 and 16 September 2023 with a total of 35 pages. A complete and chronological record of all Contact that was in recorded form (Record attached) in the applicant's possession. [SD] is the only one with whom I have had contact.
The statutory declaration attached a long series of text messages between the appellant and SD.
The Commissioner's decision
7 The respondent's application was heard by Commissioner Tsang on 9 February 2024. On 18 March 2024, the Commissioner ordered that the Appellant's Application be dismissed under s 27(1)(a)(iv) of the Act.
8 In her written reasons, Palaloi v Director General, Department of Education [2024] WAIRC 00108 (primary decision).
the Commissioner found s 27 authorised the Commission to dismiss the Appellant's Application if the appellant had engaged in misconduct in the course of her unfair dismissal claim by sending messages to SD which had the capacity, tendency or potential to interfere with the administration of justice. Primary decision [20] - [21].
The Commissioner found that SD was central to the allegations that the respondent had made against the appellant as to her conduct at the school and her unsuitability to remain as a teacher. When the text messages were exchanged on 15 and 16 September 2023, it was readily apparent that SD was a potential witness in the unfair dismissal proceedings, and the appellant intended to call her as a witness. Primary decision [52].

9 The Commissioner set out some of the messages sent by the appellant to SD: Primary decision [55].

Ur the one will be summon by court
My sister will get the court to ask you … from the cross examination in the [court]
When the court called u, they will order you to appear on the video link
And I got ur number or the police will find u
… my sister will order the court to call … you … to [tell] the truth
Do not worry, the police will find you from the court order
Ur parents will be summon too
I will be with my sister in the [court] to support her and watched you … who scared to death for being lies
So see you … in the court as my sister will challenge you all
If my sister was not satisfied with ur answers … her lawyer will ask the court to use a lie detector.
Well if u want tell the truth about what's happening, my sister will forgive you …
Well you should tell the truth as you will not be going jail as u r still under age.
But my sister said if you are faithful, keep your promise to tell [t]he truth on the video conference link at the court, you will be forgiven and other girls would not be called.
The references to 'my sister' in these text messages are to the appellant. The appellant appears to be using the persona of her own sister in communicating with SD.
10 The Commissioner found that the appellant's text messages to SD were intimidatory and harassing, Primary decision [56].
and had the capacity, tendency or potential to interfere with the administration of justice. Primary decision [67].
As such, the appellant sending the text messages constituted misconduct which made it appropriate to dismiss the Appellant's Application. Primary decision [68].

The Full Bench's decision
11 On 8 April 2024, the appellant appealed from the Commissioner's decision to the Full Bench of the Commission under s 49 of the Act. The appeal to the Full Bench was heard on 13 August 2024. On 28 November 2024, the Full Bench published reasons for concluding that the appeal should be dismissed. Palaloi v Director General, Department of Education [2024] WAIRC 00991 (Full Bench decision).

12 The Full Bench held that the Commissioner's decision to dismiss the Appellant's Application under s 27 of the Act was a discretionary decision to which the principles in House v The King applied. Full Bench decision [23].

13 The Full Bench said that the power of the Commission to dismiss a matter under s 27 of the Act is a broad power. Full Bench decision [24].
However, given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly and only in a clear case. Full Bench decision [25].
The Full Bench held that a finding that a party to proceedings in a matter before the Commission has engaged in misconduct, having the capacity or tendency to interfere with the administration of justice, is a circumstance that falls within the broad power to dismiss a matter 'for any other reason' under s 27(1)(a)(iv) of the Act. Full Bench decision [26].

14 After referring to the decision of the Court of Appeal in Librizzi v The State of Western Australia, Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104 [80], [139], [143].
the Full Bench said: Full Bench decision [31].

Having regard to the fact that proceedings before the Commission are civil proceedings, a party who engages in misconduct in matters before the Commission, by the use of threats, intimidation or harassing behaviour towards a witness or a potential witness, in an attempt to interfere with the evidence that person may give, should be regarded as an attempt to pervert the course of the administration of justice by the interference with the proper processes and proceedings of the Commission. This interference is constituted by an attempt to bring illegitimate pressure to bear on a witness or a prospective witness, by the use of such threats, intimidation or harassing conduct. It has the potential to interfere with the Commission determining a matter justly, and in accordance with equity, good conscience and the substantial merits of the case, as s 26(1)(a) of the Act requires.
15 In the absence of any clear grounds of appeal advanced by the unrepresented appellant, the Commission said that it would 'take the appellant's appeal at its highest and deal with three issues': Full Bench decision [33].

1. Did the appellant know, or at least believe, that she was communicating with SD? The Full Bench concluded that it is clear on the material before the Commission at first instance that the appellant knew, or alternatively believed, that she was engaging in text message conversations with SD on 15 and 16 September 2023. Full Bench decision [34].
After reviewing the evidence, the Full Bench held that the appellant had not established any basis to disturb the Commissioner's findings to that effect. Full Bench decision [40].

2. Was SD a potential witness in the case at first instance? The Full Bench held that it was self-evident that SD was a potential witness and the appellant should have been aware of this. The Full Bench said this was confirmed to an extent by documents filed in the Commission after the text messages were sent indicating that the appellant intended to summons SD as a witness. Full Bench decision [41] - [44].

3. Did the appellant attempt to influence SD? The Full Bench gave the following answer to this question: Full Bench decision [49] - [50].

It is unquestionable in our minds, having regard to the content of the text message exchanges on their face, that the appellant was attempting to influence student SD. The threats and intimidation were for the purpose of persuading student SD to 'tell the truth', by not maintaining a version of the events inconsistent with that advanced by the appellant. In this context, the communications between the appellant and student SD on 15 and 16 September 2023, plainly had the capacity or tendency to interfere with the administration of justice. Indeed, it is difficult to come to any other view based upon the evidence before the Commission.
In the present case, whilst it may not have been the appellant's intention to, and she most likely did not have in mind, interfering with the administration of justice per se, by the course of conduct she engaged in, that is not necessary. On the evidence, the appellant plainly attempted to persuade student SD to alter the views that student SD had of the relevant incident, and any evidence she may give, by the use of threats and intimidation. That is sufficient to constitute interference with the administration of justice.
16 Having answered the three questions in this manner, the Full Bench concluded that the appellant had not established any error in the exercise of the Commissioner's discretion to dismiss the Appellant's Application under s 27(1)(a) of the Act. Full Bench Decision [52].

17 The Full Bench delivered its written reasons, and a minute of the proposed order dismissing the appeal to the Full Bench, in the manner contemplated by s 35(1) of the Act. Section 35(3) of the Act provides:
The parties concerned are, at a time fixed by the Commission, entitled to speak to matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before the final decision is made in the terms of the minutes.
18 On 4 December 2024, the appellant lodged a document titled Speak to the Minutes against a decision of the Full Bench FBA 9 of 2014 given on 29 November 2024. The document contended that various errors were contained in the Full Bench decision. On 5 December 2024, the Full Bench made the order dismissing the appeal and gave the following supplementary reasons for doing so: Palaloi v Director General, Department of Education [2024] WAIRC 01009 (supplementary reasons).

On 28 November 2024, the Full Bench delivered its reasons for decision and minutes of proposed order in relation to this appeal. The appeal was dismissed. Being a final decision, the order of dismissal was required to be in the form of minutes of proposed order, as provided by s 35 of the [Act]. By s 35(3) of the Act the parties are entitled to speak to the matters contained in the minutes of the proposed order of the Commission. However, the purpose of speaking to the minutes is not for a party to attempt to reargue its case, to raise further matters to that contained within the reasons for decision of the Commission, or to argue the decision was wrong. The limited purpose of a speaking to the minutes is to ensure that the proposed order is consistent with the Commission's reasons, and not to alter its substance: The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2015] WAIRC 00828; (2015) 95 WAIG 1510.
In this matter, despite being advised of the above, the appellant filed a document dated 3 December 2024, purporting to reargue parts of her appeal and contending that aspects of the decision of the Full Bench were in error. This is not permissible. The reasons for decision of the Full Bench, holding that the appeal should be dismissed, is properly reflected in the minutes of proposed order dismissing the appeal. Accordingly, the order now issues.
The appeal to this court
19 On 19 December 2024, the appellant lodged with this court a notice of appeal against the order dismissing her appeal to the Full Bench. The right of appeal is conferred by s 90(1) of the Act, which relevantly provides:
Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the Full Bench … -
(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c) on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
20 The grounds of appeal contained in the appellant's notice of appeal to this court are not in a traditional form. They are set out in full in the annexure to these reasons.
Disposition of appeal
21 The appellant's grounds of appeal do not in form identify any error of the kind which may be the subject of a ground of appeal under s 90(1) of the Act.
22 Further, the material before this court does not establish any arguable basis on which a ground of the kind provided for by s 90(1) of the Act could reasonably be advanced.
23 Plainly, the dispute about the termination of the appellant's employment is an industrial matter, as defined in s 7(1) of the Act, for the purposes of s 90(1)(a) of the Act.
24 Section 90(1)(b) of the Act provides for a ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act etc. An error of law made in the course of a decision of the Full Bench will only be appealable if the error was in the construction or interpretation of any Act, regulation, award, industrial agreement or order. BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49; (2006) 151 IR 361 [106].
As Le Miere J (Wheeler & Pullin JJ agreeing) observed in BHP Billiton: BHP Billiton [109] - [110].

Appealable questions of law may arise from the reasoning of the Full Bench on the way to its ultimate conclusion. … An appeal cannot be made, however, on the ground that there has been an error in the construction or the interpretation of the Act where the Full Bench has merely applied law which it has correctly understood to the facts of an individual case. It is for the Full Bench to weigh the relevant facts in the light of the applicable law.
25 Further, the requirement that the relevant error occur 'in the course of making the decision appealed against' necessitates that the error in construction or interpretation must have materially affected the Full Bench's decision. BHP Billiton [111].

26 In the present case, there is no reason to doubt the correctness of the Full Bench's construction of the power to dismiss a matter conferred by s 27(1)(a)(iv) of the Act which is set out at [13] above. Nor is there any reason to doubt the correctness of the Full Bench's construction of s 35 of the Act set out at [18] above. Rather than challenging the Full Bench's construction of the provisions, the appellant's complaints concern the application of those provisions, properly construed, to the facts and evidence in this case.
27 The Full Bench received both written and oral submissions from the appellant on the question of whether the Commissioner erred in dismissing the appellant's unlawful dismissal application. The opportunity to 'speak to the minutes' provided by s 35 of the Act was not the occasion to reagitate arguments which the appellant had advanced in support of her appeal or challenge the correctness of the reasons for dismissing the appeal expressed by the Full Bench. As such, the Full Bench did not deny the appellant the right to be heard by refusing to consider arguments of that kind which she sought to advance after its reasons for dismissing the appeal had been published.
28 The appellant submits that the Full Bench denied her a fair hearing when it stopped her from making submissions as to the merits of her unfair dismissal application. See in particular the appellant's submissions filed 24 June 2025, pars 11 - 14.
The appellant was advised by the Full Bench that 'We're not here to talk about why you were dismissed. … We're here to talk about why your application was dismissed'. The appellant was informed: Full Bench, 13 August 2024, ts 15 (AB 30).

We're only concerned with the orders that Commissioner Tsang made. We're not concerned about what happened at the school at the time you were employed. We're not dealing with that. We're only dealing with the order to dismiss your claim based upon the text messages.
29 There is no merit in the appellant's submission that she was denied an opportunity to be heard on the matters relevant to the determination of her appeal to the Full Bench. The Full Bench did not deal with the merits of the Appellant's Application, but rather properly confined its attention to the question of whether the Commissioner erred in dismissing the Appellant's Application under s 27(1)(a)(iv) of the Act. That was the only subject of the appeal to the Full Bench.
30 Otherwise, the appellant does not contend, and we see no basis on which she could contend, that she was denied the right to be heard by the Full Bench within the meaning of s 90(1)(c) of the Act.
Notice of motion
31 On 9 May 2025, the appellant filed a notice of motion in which she sought a 'default judgment' by reason of conduct by the respondent which it is alleged resulted in the hearing of the appeal being listed on 1 September 2025 rather than in July/August 2025. The appellant also asserts that the respondent submitted 'fabricated evidence' in the proceedings below. The appellant sought the following relief:
• Default judgment against the Respondent due to unreasonable delays and fabricated evidence.
• A declaration of my innocence regarding the Full Bench's erroneous decision and allegations
• Compensation for lost wages, equivalent to $95,287 per annum, for the period of unjust delay, to be incorporated into the appellant's fortnightly salary of $1,600 from 15 June 2023.
• Reparation for emotional harm, including 'compensatory' psychological treatment.
• Reinstatement to my position to resume teaching in the public school system.
• Disciplinary measures against all individuals involved, including the Full Bench, the Respondent and their teams for their significant errors.
• Any other relief deemed just and equitable by the Court. (original emphasis)
32 On 16 May 2025, Buss J made programming orders and ordered that the notice of motion be heard at the hearing of the appeal.
33 There is no merit to the appellant's notice of motion seeking 'default judgment' in the appeal. On 3 April 2025, the court emailed the parties advising that the matter was being considered for listing in July or August 2025 and requesting to be advised of counsel's available dates. On 9 April 2025, the respondent's solicitor advised that his counsel was unavailable in July due to leave but did not have any unavailability in August. See the affidavit of Michael William McIlwaine sworn 10 June 2025, attachments MWM1 and MWM8.
The fact that the appeal could not be listed in August 2025 is not attributable to the respondent. The allegation of 'fabricated evidence' is unsubstantiated.
34 In any event, this court could only make orders allowing the appeal if satisfied that a ground of appeal of the kind identified in s 90(1) of the Act was advanced and established. The lack of merit in the appellant's grounds of appeal preclude this court from giving 'default judgement' allowing the appeal. Nor is there any proper basis on which the court could grant the other relief sought by the appellant, even if the matters asserted by the appellant were established.
Orders
35 For these reasons, at the conclusion of the hearing on 1 September 2025, we made the following orders:
1. The appellant's notice of motion filed on 9 May 2025 is dismissed.
2. The appeal is dismissed.

Annexure: Appellant's Grounds of Appeal

The following are the matters appealed against: -

In respect to paragraphs 52 (Conclusion), 33, 18, 9, I deny the Full Bench allegations. In its Conclusion The appellant has not established any error in the exercise of the discretion by the learned Commissioner in her decision to dismiss the appellant's application under s27(1)(a) of the Act to dismiss my appeal.

The grounds on which this appeal is made are as follows: -

I respectfully contest the Full Bench's decision, arguing it misinterpreted key legal principles and incorrectly applied precedents. I clearly articulated the error in the Learned Commissioner's dismissal of my unfair dismissal application, both in written submissions (Section 11AB (g)) and during oral proceedings on August 13, 2024. The Full Bench's dismissal, based on their assertion that I failed to articulate these mistakes, is legally flawed. I respectfully request the overturning of the Learned Commissioner's decision, the reinstatement of my unfair dismissal claim, and the rescheduling of the hearing of my unfair dismissal application submitted in June 2023.

The following are the matters appealed against: -

In respect paragraph 34, I deny the Full Bench's allegation stated that whilst the appellant repeatedly asserted that she is not legally trained and did not appreciate the consequences of what she was ordered to do in making her affidavit, the matters arising are questions of fact and involve common understanding and not legal skills or training.

The grounds on which this appeal is made are as follows: -

I contend that The Full Bench's acceptance was erroneous regarding the argument in this paragraph 34. I was misled into creating a statutory declaration based on text communications, unaware of the affidavit requirement. The only statutory declaration I submitted related to my Master's degree and work application. Upon reviewing the allegations, I identified the respondent's misrepresentation of our communications. My claim of lacking legal experience stems from feeling undermined and unaware of tactics that disadvantage individuals without legal training. Consequently, I could not defend myself against threats of penalties during the March 2024 hearing. I dispute the respondent's accusations of dishonesty. This matter was thoroughly examined during the February 2023 hearing with the Learned Commissioner.

The following are the matters appealed against: -

In respect to the paragraphs 36, I deny the Full Bench's allegation, which claim that initial text messages pertain to my nutrition business, as raised by the respondent during the February 2024 hearing before the Learned Commissioner.

The grounds on which this appeal is made are as follows: -

I contend that the Full Bench misinterpreted the message's context and incorrectly assigned liability based on mentions of my business, influenced by the undisclosed identity of Student SD. This issue was also presented by the respondent during the Mach 2024 hearing before the Learned Commissioner, as part of their 'panic' behaviour prompted my safety concerns report, which was hindered by the respondent's interlocutory application. Given my business serves adults and my responsibilities at the School, the Full Bench's dismissal of my appeal based on this business issue, contradicts the Learned Commissioner's findings from the February 2024, raising concerns about fairness. Therefore, I seek the overturning of the Full Bench's decision.

The following are the matters appealed against: -

On 2nd December 2024, I received notification to submit the Speak to the Minutes to contest the Full Bench's decision to dismiss my appeal. I inquired whether an independent third party would assess the Speak to the Minutes to ensure impartiality and how independently the results would affect all parties involved fairly. My inquiries were overlooked. The Full Bench reaffirmed their decision in a letter dated December 5th, 2024. I contend that the Full Bench demonstrates a lack of transparency and a conflict of interest in managing my appeal.

The grounds on which this appeal is made are as follows: -

I contend that the Full Bench's handling of my appeal lacks transparency and exhibits a conflict of interest. After receiving notification on December 2, 2024, to submit the Speak to the Minutes, I inquired whether an independent third party would assess it to ensure impartiality and fairness for all parties. My inquiries were ignored. The Full Bench reaffirmed their decision in a letter dated December 5, 2024, raising concerns about the fairness of the process. Therefore, I appeal the Full Bench's decision on these grounds. (footnotes omitted)


I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.

LK
Associate to the Hon Justice Mitchell

2 SEPTEMBER 2025