CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00908

DELIVERED : Thursday, 6 November 2025

FILE NO. : B 88 OF 2021

Applicant

AND

Royale Hospitality Pty Ltd

Respondent

CatchWords : Industrial Law (WA) – Contractual benefit claim – Failure to prosecute application – Insufficient interest – Industrial Relations Act 1979 (WA) s 27(1)(a) – Application dismissed for want of prosecution

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)    

Result : Application dismissed for want of prosecution

Representation:

Applicant : No Appearance

Respondent : No Appearance

Reasons for Decision (Given Ex Tempore)

1         On 18 October 2021, Mr George Gifford (applicant) filed a claim with the Western Australian Industrial Relations Commission (Commission), alleging that Royale Hospitality Pty Ltd (respondent) denied a benefit under his contract of employment for:

a) Ordinary hours pay worked from 1 March 2021 to 4 April 2021 at a rate of $1,634.62 per week; and

b) Outstanding pay for ordinary hours worked from 5 April 2021 to 13 June 2021, when the applicant received a temporary pay cut of $1,200 net per week;

c) Outstanding pay for overtime worked between 1 June 2021 to 16 August 2021;

d) Full payment of outstanding accrued annual leave; and

e) Payment for outstanding wages in the week 16 August 2021 to 19 August 2021; and

f) Payment for unpaid superannuation throughout the course of his employment.

2         On 17 November 2021, the respondent filed its response, opposing the application on various grounds.

3         On 25 November 2021, the Commission listed a Conciliation Conference for 28 January 2022, in line with the parties’ provided available dates.

4         On 27 November 2021, the respondent sent an email indicating that they were no longer available on 28 January 2022.

5         On 3 December 2021, the Commission advised the parties that the Conciliation Conference would be listed for 9 February 2022 in accordance with the parties’ updated availability. Subsequently, confirmation of conference letters were sent to the parties notified via email.

6         On 4 February 2022, the respondent emailed the Commission requesting an adjournment to proceedings for one month, citing illness and work requirements. The applicant agreed to the adjournment and the Conciliation Conference was re-listed for 22 March 2022 as per the parties’ availability.

7         The Conciliation Conference proceeded on 22 March 2022 with no resolution to the matter.

8         Following the Conciliation Conference held on 22 March 2022, the Commission emailed the parties outlining the outcome of the conference. The email stated that one of the outcomes was for the applicant to notify the Commission of their intentions via email in the following weeks.

9         On 2 May 2022, noting there was no correspondence from the Applicant, the Commission emailed the parties for a further status update.

10      On 5 May 2022, the respondent replied indicating ‘that settlement discussions resumed following the conciliation which have been unsuccessful to date’.

11      On 6 February 2025, the Commission emailed the parties, noting that no further correspondence had been received, and asking the applicant to either discontinue the matter or notify the Commission as to their intentions.

12      In this email, my associate told the parties that if the applicant failed to respond, then the matter may be listed for a Show Cause Hearing pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act).

13      On 11 February 2025, the applicant’s Representative, filed a Form 11 – Notification of Representative Ceasing to Act, noting that they were unable to receive instruction regarding the applicant’s intentions.

14      On 12 February 2025, the Commission emailed the applicant directly, requesting a status update. The applicant was advised if they did not notify the Commission of how they wished to proceed, then the matter may be listed for a Show Cause Hearing.

15      Further correspondence was sent to the applicant on 25 February 2025, in which a further update was requested. The Commission informed the applicant that their representative had ceased to act on his behalf. In this email, it was clear that if the applicant did not respond by either filing a Form 1A – Notice of Discontinuance, or by updating the Commission, then the matter would be listed for a Show Cause Hearing.

16      On 17 March 2025, the parties were notified that a Show Cause Hearing was listed for 2 September 2025 at 10.30 am. The email to the parties attaching the Notice of Hearing stated the proceeding was a Show Cause Hearing for the applicant to show cause why the matter ought not be dismissed pursuant to s 27(1)(a) of the IR Act. Further, the applicant was advised that not attending would potentially result in the matter being dismissed for want of prosecution.

17      The applicant did not attend the Hearing.

18      The respondent has also not attended the Hearing. However, I note the respondent was advised there was no requirement for them to attend, given the onus is on the applicant to show why this matter ought not be dismissed

19      I am satisfied the applicant was served notice of the Hearing in accordance with reg 25(2) of the Industrial Relations Commission Regulations 2005 (WA). This was done on 17 March 2025. I note reg 25(2) provides that service can be effected by sending the Notice of Hearing as an attachment by email, to the email address the applicant has provided to the Commission.

20      I am satisfied that the hearing may proceed in the absence of the parties.

21      The Commission may dismiss an application under s 27(1)(a)(iii) of the IR Act where the Commission forms the view that the person who referred the matter to the Commission, does not have sufficient interest.

22      The applicant has not provided any reasons for failing to respond to requests by the Commission as to how they want to proceed. The applicant was notified that this application may be dismissed if they did not attend the hearing.

23      I find the applicant has failed to prosecute his case without adequate reason and has failed to respond to several communications from the Commission and along with his failure to appear at this hearing, conclude that the applicant does not have sufficient interest for this application to be sustained.

24      For these reasons, I will dismiss this application for want of prosecution.