2025 WAIRC 00132
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00132

CORAM
: COMMISSIONER C TSANG

HEARD
:
ON THE PAPERS

DELIVERED : FRIDAY, 28 FEBRUARY 2025

FILE NO. : U 77 OF 2024

BETWEEN
:
REUBEN MOLINARI



Applicant

AND

DIRECTOR GENERAL, DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS
Respondent

CatchWords : Application to amend Form 2 - Unfair Dismissal Application
Legislation : Industrial Relations Act 1979 (WA)     
Result : Application to amend dismissed
REPRESENTATION:

APPLICANT : MR D RAFFERTY OF COUNSEL
RESPONDENT : MR J CARROLL OF COUNSEL

Case referred to in reasons:
MALIK V PAUL ALBERT, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION OF WESTERN AUSTRALIA [2004] WASCA 51


Reasons for Decision
Background
1 On 19 August 2024, the applicant filed a Form 2 – Unfair Dismissal Application (Form 2).
2 On 29 August 2024, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application (Form 2A).
3 The matter was listed for conciliation on 26 November 2024 and subsequently another conciliation was held on 11 February 2025.
4 On 11 February 2025, the following directions were issued:
(a) By 21 February 2025, the applicant to file an application seeking leave to amend the Form 2 filed on 19 August 2024 (Application to Amend).
(b) By 28 February 2025, the respondent to file their response to the Application to Amend.
(c) Unless the Commission determines otherwise, the Application to Amend will be determined on the papers.
Applicant’s Application to Amend
5 In accordance with the direction at [4(a)] above, the applicant filed their Application to Amend, seeking leave to file an amended Form 2 on the terms as attached to the application (amended claim), stating:
Leave should be granted by reason of:
1. the positions that the Commission, applicant and respondent took at the conference in relation to the amendment of the application;
2. the amendments are made early in the proceeding and unlikely to cause any prejudice to the respondent;
3. the amendments are consistent with the purpose and effect of ss 26(1)(a) and 27(1)(l) and (v) of the Act.
Respondent’s response
6 Pursuant to the direction at [4(b)] above, the respondent filed their response, stating:
I. Introduction
1. By Form 1A application, the applicant applies to amend his claim.
2. The respondent opposes leave being granted to amend for the following reasons taken individually and together:
(a) First, no reasons have been given to explain why there is a need to amend or why the application in its original form is not in a form that the applicant presses.
(b) Secondly, the applicant impermissibly relies upon confidential communications from conference to support the application to amend.
(c) Thirdly, contrary to the applicant’s assertion, the respondent is prejudiced by leave being granted to amend.
(d) Fourthly, the proposed amended claim is impermissibly vague.
(e) Fifthly, the case the applicant seeks to run pursuant to the proposed amendments is partially inconsistent with the position he put forward during the disciplinary process, and it would be contrary to equity and good conscience to allow the applicant to pursue his claim in that manner.
II. No reasons explaining why amendment required
3. Putting to one side what was said in conference (which is dealt with below), the applicant does not propose to adduce any evidence explaining why there is a need to amend the claim or why the claim as it presently stands is not in a form to proceed to trial.
4. The applicant seeks the indulgence of the Commission. It is for him to establish that such indulgence should be granted. Amendments are not merely for the taking, particularly significant amendments sought to be made after the matter has been the subject of conciliation and when the matter would otherwise be ready to be programmed for trial.
5. In the present case, the applicant was at all times represented by an industrial organisation which has extensive experience representing the interests of its members, including in claims of unfair dismissal.
6. It is not clear (because there is no evidence or proposed evidence) why the claim in its original form is not the claim the applicant wishes to press to trial. It is also not clear (because there is no evidence) why significant amendments are now sought.
7. The absence of evidence means the applicant has not established any reason, let alone a good reason, warranting the grant of an indulgence.
8. There is nothing the Commission could point to in order to say it would be acting in accordance with equity and good conscience in granting the amendment.
9. The lack of evidence or reasons in support of the amendment when there is prejudice to the respondent is sufficient in and of itself for the application to be refused.
III. Impermissible reliance on confidential communications
10. One of the reasons given supporting the application to amend is that certain comments were made by the Commissioner, the applicant, and the respondent at a confidential conference held under the Industrial Relations Act 1979 (WA) [(Act)].
11. The applicant has not identified any relevant exception to the confidentiality of that conference in support of his reliance on that discussion.
12. It is trite that such discussion was confidential and in the absence of a recognised exception to confidentiality, it is improper, indeed it is an abuse of process, for the applicant to seek to rely on what was said in conference in support of his application.
13. This basis is sufficient to warrant the application being refused. Indeed, it is a sufficient basis to dismiss the whole proceedings because the applicant is attempting to abuse the processes of the Commission by using what was said in conference for an improper purpose.
14. It would be contrary to equity and good conscience for the Commission to grant the application when the applicant comes with unclean hands by relying upon confidential communications which [is] impermissible to rely upon. The applicant’s approach has the capacity to cause a chilling effect on parties being open and frank in conferences before the Commission for fear that what is said will be impermissibly used in the future.
IV. Prejudice
15. The applicant asserts there is no prejudice to the respondent. Even if true, that would simply be a neutral consideration, it would not be a consideration positively in support of granting the application.
16. However, and in any event, the following prejudice arises:
(a) First, the respondent has to respond to the present application and will need to draft and file an amended response in the proceedings if the application is granted. That will lead to resources being used and costs being incurred which would otherwise not have been incurred and which are not recoverable.
(b) Secondly, the proposed [amended] claim is ambiguous and the respondent would be prejudiced because he cannot properly understand or respond to the proposed amended claim. For example: (i) [1(b)], [2(b)], and [5(b)] say the “conduct was contextualised”, but the applicant does not say what the contextual features of the conduct were; (ii) [1(a)] is ambiguous as there is no plea with respect to the balance of the conduct the subject of allegation 2; (iii) [2(a)] is ambiguous there is no reference to the other instruction the applicant was alleged to have been given; and (iv) [4(a)] is ambiguous because it refers to engaging in conduct “along the lines of what is alleged”.
(c) Thirdly, the proposed amended claim reveals the applicant seeks to pursue these proceedings in a way that is impermissibly inconsistent with the way he responded to the allegations – in particular, [4] as well as the applicant’s written comments on the allegation letter that a number of allegations were fabricated. It would be prejudicial to the respondent to allow the applicant to run a case which is inconsistent with his responses during the disciplinary process.
V. Vague claims
17. The proposed [amended] claim is ambiguous for the reasons provided above and leave should not be given to amend in the presently proposed terms because further amendment would be required to provide procedural fairness to the respondent.
VI. Inconsistent case
18. At least [4] of the proposed amended claim is inconsistent with the applicant’s response in the course of the disciplinary process given on 1 December 2023.
19. At [4], the applicant admits engaging in “certain conduct along the lines of what is alleged” in respect of the Mental Health First Aid Course, but in his 1 December 2023 response to the allegations he denied some of the alleged conduct the subject of that allegation.
20. It is contrary to equity and good conscience to allow the applicant to pursue such an inconsistent case especially where, given the applicant must have knowledge of what he did or did not do, either his response to the allegation or his proposed amended application must be dishonest.
VII. Conclusion
21. The application to amend should be dismissed.
Consideration
7 The applicant was dismissed on 19 July 2024.
8 Therefore, s 29(2) of the Act (as it applied at the time, now s 29(2)(a)) required the Form 2 to have been filed by 16 August 2024, being no ‘later than 28 days after the day on which the employee’s employment is terminated’.
9 Section 29(3) of the Act provides that the Commission may accept a Form 2 that has been filed out of time ‘if the Commission considers that it would be unfair not to do so’.
10 Paragraph 1 of the Schedule to the Form 2A states:
The applicant was employed by the respondent as a Conservation Employee until his dismissal on 19 July 2024. The claim for unfair dismissal was accepted for filing outside of the 28-day time limit and the applicant requires an extension of time. No application for an extension of time has been filed, and no explanation for the delay has been provided.
11 From a review of the Registry’s file, it appears that:
(a) On Friday, 16 August 2024, 12:30pm, the applicant’s previous representatives (the AWU), emailed the Commission’s Registry attaching the Form 2 for filing. In this email, the AWU requested the Commission to contact the AWU’s office during business hours to enable the filing fee to be paid by credit card.
(b) A tax invoice for the filing fee was issued on Monday, 19 August 2024, 2:29pm.
(c) The Form 2 was accepted for filing on 19 August 2024, 2:29pm.
12 In the circumstances outlined in [11] above, there does not appear to be any impediment to the Form 2 proceeding to hearing and determination.
13 However, to amend the Form 2, the applicant requires the leave of the Commission.
14 As outlined at [5] above, the applicant has presented three reasons why they contend the Commission should grant leave:
(a) the positions taken at the conciliation conference (Reason 1).
(b) the amendments are made early in the proceeding and unlikely to cause any prejudice to the respondent (Reason 2).
(c) the amendments are consistent with the purpose and effect of ss 26(1)(a) and 27(1)(l) and (v) of the Act (Reason 3).
15 Reason 1 can be promptly addressed by stating that I agree with the respondent’s submission at [12] of their response. Conciliation conferences are private and confidential, and conducted on a without prejudice basis. The purpose of this is to enable parties to explore potential settlement options without the concern of any offers or concessions made during the conference being used against them if the matter proceeds. Consequently, I agree with the respondent’s contention that it is impermissible for the applicant to rely on Reason 1.
16 Reason 2 concerns the prejudice to the respondent.
17 In the Industrial Appeal Court decision of Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51 (Malik) [26], Steytler J (Presiding Judge) provided the following comments in relation to when it would be unfair not to accept an unfair dismissal claim submitted out of time:
Like E M Heenan J, I consider that the principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite. As E M Heenan J has said, Marshall J there identified the following six “principles” (at 299–‍300):
“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
18 While Malik dealt with the principles relevant to an application under s 29(3) of the Act, I consider that principles 3 and 4 are apropos to the Application to Amend.
19 In particular, the lack of prejudice to the respondent would not be a sufficient reason to grant the Application to Amend. Conversely, the presence of prejudice to the respondent would be a relevant factor to consider in denying the Application to Amend.
20 In response to Reason 2, the respondent has detailed the prejudice they claim would result from the Application to Amend being granted at [16] of their response.
21 I readily accept the prejudice at [16(a)] of the respondent’s response.
22 In relation to the prejudice mentioned at [16(b)] of the respondent’s response, I accept that [1(b)], [2(b)], and [5(b)] of the amended claim that the “conduct was contextualised” without specifying the contextual aspects, and [4(a)] of the amended claim of engaging in conduct “along the lines of what is alleged”, are ambiguous, and may prevent the respondent from understanding the case to be answered and thus restrict the respondent from responding to the amended claim without first seeking further particulars.
23 I also accept that, without specifying the conduct the subject of allegations 2 and 3 that is said to be “contextualised” at [1(b)] and [(2(b)] of the amended claim, that [1(a)] of the amended claim in not addressing the entirety of the conduct, and [2(a)] in not mentioning the other instruction the applicant was given, are ambiguous.
24 With regard to the prejudice mentioned at [16(c)] of the respondent’s response, I accept that the amended claim implies the applicant is attempting to pursue the proceedings in a way that seems inconsistent with his response to the allegations, especially in instances where he claimed that several of the allegations were fabricated.
25 However, I am not fully persuaded by the purported prejudice resulting from the inconsistency at [4] of the amended claim. An assessment of the allegation vis-à-vis the applicant’s response submitted on 1 December 2023 with [4] of the amended claim suggests the applicant is consistent in admitting to engaging in some of the conduct alleged and denying engaging in some of the conduct alleged.
26 Reason 3 cites ss 26(1)(a) and 27(1)(l) and (v) of the Act. These state:
26. Commission to act according to equity and good conscience
(1) In the exercise of its jurisdiction under this Act the Commission –
(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;
27. Powers of the Commission
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it –
(l) allow the amendment of any proceedings on such terms as it sees fit; and
(v) generally give all such directions and do all such things as are necessary or expedient for the expedition and just hearing and determination of the matter.
27 The difficulty with Reason 3 is that while the Commission may allow an amendment pursuant to s 27(1)(l) of the Act, the applicant has not provided any evidence to support why the Commission should exercise this discretion. Nor has the applicant provided any evidence as to how allowing the amendment would be consistent with ss 26(1)(a) and 27(1)(v) of the Act.
28 I accept the respondent’s submissions at [3]–[9] of their response, that the applicant is seeking for the Commission to exercise its discretion in granting the Application to Amend. However, despite the onus being on the applicant to demonstrate that leave should be granted, the applicant has not presented any evidence to support the Application to Amend.
Conclusion
29 For the preceding reasons, I am not persuaded that the applicant has demonstrated that I should exercise my discretion to grant leave for him to amend the Form 2.
30 Consequently, the Application to Amend will be dismissed.