UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00108

DELIVERED : Friday, 21 February 2025

FILE NO. : U 86 OF 2023

Applicant

AND

Equestrian Western Australia Inc

Respondent

CatchWords : Termination of employment – Claim of unfair dismissal also filed in Fair Work Commission – Commission lacks jurisdiction – Effect of Fair Work Commission decision on WAIRC claim considered – Estoppel

Legislation : Industrial Relations Act 1979 (WA) s 29AA(1), s 29AA(2)

  Fair Work Act 2009 (Cth)

Result : Application dismissed

Representation:

Applicant : Mr Danny Boeser

Respondent : Ms Lois Andrjich (of counsel)

Case(s) referred to in reasons:

Boeser v Equestrian Western Australia Incorporated [2024] FWC 376

Matthew Gugiatti v SolarisCare Foundation [2016] WAIRC 00141

Reasons for Decision

1         Mr Danny Boeser commenced employment with the State Equestrian Centre in October 2021 as a caretaker. The applicant’s employment ended on 6 November 2023. On 29 November 2023 the applicant applied to the Commission for reinstatement. The applicant named the State Equestrian Centre as the legal name of the respondent.

2         On 1 December 2023 the respondent informed the Commission that they had received applications for unfair dismissal through the Commission and the Fair Work Commission. The respondent stated that the State Equestrian Centre is a national system employer, and the applicant’s employment is covered by the Registered and Licenced Clubs Award, a federal award.

3         On 7 December 2023 the respondent filed a response citing the legal name of the respondent as Equestrian Western Australia Incorporated. The respondent objected to the application on the basis that it was a national system employer and the applicant had filed a claim for relief, in respect of his termination, with the Fair Work Commission.

4         On 15 December 2023, the Commission emailed the parties noting the jurisdictional objection raised by the respondent, referred the parties to s 29AA of the Industrial Relations Act 1979 (WA) (IR Act) and sought the views of the parties on how they wished to progress this matter.

5         On 19 December 2023 the respondent advised that they did not believe the claim ought to be progressed in the Commission.

6         The applicant emailed a response on 21 December 2023 which referenced his grievances with the respondent however he did not address the question of how to progress his claim in the Commission.

7         On 22 December 2023 the respondent informed the Commission that a hearing had been scheduled by the Fair Work Commission to deal with the applicant’s claim in that jurisdiction.

8         On 2 February 2024 the respondent advised the Commission that the Fair Work Commission had conducted a hearing concerning the termination of the applicant and the parties were awaiting a decision.

9         On 2 February 2024, the Commission emailed the parties requesting that they advise whether the Fair Work Commission (FWC) hearing considered the issue of whether the FWC has jurisdiction on the basis that the respondent is not a national system employer.

10      On 6 February 2023, the respondent advised the Commission that no jurisdictional objection had been raised in the FWC proceedings, saying:

No jurisdictional objection was raised in the FWC on the basis the respondent was not a national system employer by either the applicant, or by us as the respondent.It is clear to us that Equestrian WA is a national system employer (the business is a constitutional corporation with substantial trading - see page 24 of the attached annual report which highlights substantial revenue through selling memberships, registrations, facility fees and other activity compared to a small portion of government funding).

As the application before the FWC has been heard and we are awaiting a decision, unless the applicant withdrew the claim within the FWC prior to the decision, my understanding is there would be no basis where WAIRC would be able to hear it. If it was withdrawn and heard within the WAIRC, we would demonstrate through financial statements and other relevant information that the matter does not belong in the state system.

Requiring the parties to attend a Directions hearing this week will mean unnecessary costs and time for all parties involved, including the Commissioner, and we are conscious of wasting precious time and resources where at all possible.

11      On 10 May 2024 the Commission emailed the parties noting the FWC had issued a decision in Boeser v Equestrian Western Australian Incorporated [2024] FWC 376 on 12 February 2024, and sought an update from the parties.

12      On 10 May 2024 the respondent replied:

This matter was vacated, because as per section 29AA of the WA Industrial Relations Act, it was noted that WAIRC must not determine a claim of unfair dismissal if the dismissed employee has lodged an application with the Fair Work Commission, unless the claim is withdrawn or rejected/dismissed on the grounds that it is not within the jurisdiction of the Fair Work Commission.

As highlighted below, the matter has already been seen and decided in the Fair Work Commission. No jurisdictional objection was raised in the FWC on the basis the respondent was not a national system employer by either the applicant, or by us as the respondent. As the application before the FWC has already been heard and decided, and was not dismissed on the grounds that it was not within the jurisdiction of the Fair Work Commission, we understand the WAIRC is unable to hear it.

13      On 15 May 2024 the applicant emailed the Commission stating that he wished to proceed with his application in the Commission.

14      On 27 May 2024 the parties were directed that a hearing be conducted for the applicant to be heard on the matter of whether the Commission had jurisdiction to hear and determine the matter because the employer is a national system employer and the effect of s 29AA (1) and (2) as set out in previous emails.

15      On 28 May 2024 the parties were notified of a show cause hearing set down for 21 June 2024.

16      The applicant and respondent attended the hearing. The applicant submitted that he rejected the decision of the Fair Word Commission finding that he was not unfairly dismissed. The applicant said that at the time of the hearing at the FWC, he was stressed and unable to adequately present his case. The applicant argued that he did not have the means to engage professional advice and representation.

17      At the hearing the respondent contended that it is a trading corporation and a national system employer, and as such its employees are covered by the Registered and Licenced Clubs Award, a modern award under the Fair Work Act 2009 (Cth). The respondent reiterated their objection to the Commission’s jurisdiction in its response filed on 8 December 2023. The respondent submitted that the FWC enquired as to whether there was a jurisdictional objection to it hearing and determining the claim, and the applicant did not raise any objection.

18      Section 29AA(1) and (2) of the IR Act provide that a person cannot proceed with claims of unfair dismissal in both the Commission and the FWC unless it is found that the FWC does not have jurisdiction:

29AA. Certain claims not to be determined

(1) Subject to subsection (2), the Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if the dismissed employee has lodged an application with FW Commission for relief in respect of the termination of that employment.

(2) Despite subsection (1) the Commission may determine the claim if the application to the FW Commission is —

(a) withdrawn; or

(b) rejected or dismissed on the ground that it is not within the jurisdiction of FW Commission to determine the application.

19      A similar issue of concurrent applications to the FWC and the Commission was considered by Chief Commissioner Beech in Matthew Gugiatti v Solariscare Foundation [2016] WAIRC 00141(Gugiatti):

[24] The FWC is a tribunal with jurisdiction over claims of unfair dismissal and heard evidence of the merits of Mr Gugiatti’s claim of unfair dismissal, sufficient to be able to find that Mr Gugiatti’s employment terminated at the end of his specified period of employment and therefore he had not been dismissed. The decision disposes once and for all of that fundamental matter so that, except on appeal, it cannot be re-litigated between the persons bound by the decision. That same fundamental matter should not be permitted to be re‑litigated in this Commission between these same parties as the parties to the FWC decision. It is that which is undesirable in the public interest.

[25] This does not raise complex questions of whether the respondent is a constitutional corporation. If estoppel applies at all, it is not whether Mr Gugiatti has changed his position; he has not done so. It is that a tribunal with the jurisdiction to decide at least whether he was or was not dismissed, has heard the evidence about that threshold issue and determined it against him and he should not be permitted now to argue in this Commission that the FWC decision was wrong. The respondent’s request that Mr Gugiatti’s application be dismissed should be granted.

[26] Mr Gugiatti’s written submission would be quite correct if the FWC had not dealt with his claim of unfair dismissal at all, but it had at least to the extent of determining that he had not been dismissed.

[27] The issue is capable of being looked at from a different direction. Mr Gugiatti has shown that he is aware that s 29AA(1) of the Act prevents this Commission from determining his claim of unfair dismissal if he has lodged an application with the FWC for relief in respect of the termination of his employment. There are two exceptions in s 29AA(2). These are that this Commission may determine his claim if the application to the FWC is —

(a) withdrawn; or

(b) rejected or dismissed on the ground that it is not within the jurisdiction of Fair Work Australia to determine the application.

[28] Mr Gugiatti’s claim in the FWC was not withdrawn. It was dismissed on the ground that the claim was not within the jurisdiction of the FWC to determine the application because Mr Gugiatti was not dismissed.

[29] Section 29AA(1) is a provision which prevents a person being allowed to argue in both the FWC and this Commission that he has been unfairly dismissed. That is as it should be: a person does not have ‘two bites at the cherry’. That provision prevents Mr Gugiatti, having argued in a claim of unfair dismissal in the FWC that he had been dismissed and having been found by the FWC not to have been dismissed, from then coming to this Commission to argue in this claim of unfair dismissal for a second time, that he was dismissed. Correspondingly, the respondent should not be required to have to defend the same claim in two different jurisdictions.

20      On 12 February 2024 the Fair Work Commission issued a decision dismissing the applicant’s claim made to the Fair Work Commission that he had been unfairly dismissed in Danny Boeser v Equestrian Western Australia Incorporated [2024] FWC 376.

21      The Fair Work Commission proceeded on the basis that Equestrian Western Australia is a national system employer. The reasons for decision do not refer to any jurisdictional objection to the Fair Work Commission dealing with the application.

22      Applying the reasoning in Gugiatti, I find that the Commission is precluded from hearing and determining the application by s 29AA of the IR Act and therefore I will order the application be dismissed.