UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Kerris Radanovich

APPLICANT

-v-

Department of Education

RESPONDENT

CORAM Commissioner C Tsang

DATE Tuesday, 26 March 2024

FILE NO. U 1 OF 2024

CITATION NO. 2024 WAIRC 00136

Result Application dismissed

Representation

Applicant Ms K Radanovich (on her own behalf)

Respondent Mr M McIlwaine (of counsel)

Order

WHEREAS on 4 January 2024, the applicant filed a Form 2 – Unfair Dismissal Application (Form 2);

AND WHEREAS on 22 January 2024, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application, raising the jurisdictional objection that the applicant, as a government officer within the meaning of the Industrial Relations Act 1979 (WA) by virtue of her employment as a public servant, falls outside the Commission’s jurisdiction (Jurisdictional Objection);

AND WHEREAS on 21 February 2024, the Jurisdictional Objection was listed for a Directions Hearing, and during the hearing, the applicant agreed the Commission lacks jurisdiction to hear and determine the Form 2, and consequently the applicant was given until 7 March 2024 to either discontinue the proceedings or seek leave to amend the Form 2 to align with the Commission’s jurisdiction;

AND WHEREAS on 11 March 2024, the Commission wrote to the applicant extending the time for the applicant to discontinue the proceedings or seek leave to amend the Form 2 to 25 March 2024, and informing the applicant that if she opted not to pursue either option by 25 March 2024 that the Commission would dismiss the proceedings for reasons including that it is an abuse of process to maintain the proceedings where they are ‘foredoomed to fail’ as outlined in Walton v Gardiner [1993] 177 CLR 378;

AND WHEREAS on 25 March 2024, the applicant indicated a preference for the proceedings to conclude, and consequently the Commission wrote to the applicant requesting confirmation of the applicant’s preference for the proceedings to be discontinued or dismissed, and the applicant confirmed her understanding that the proceedings would be dismissed;

NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA), hereby orders –

THAT application U 1 of 2024 is dismissed on grounds of want of jurisdiction and abuse of process.

Commissioner C Tsang