REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00717

DELIVERED : Friday, 22 August 2025

FILE NO. : APPL 9 OF 2024

Applicant

AND

Department of Justice

Respondent

CatchWords : Industrial Law (WA) - Termination of employment - 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)

  Public Sector Management Act 1994 (WA)     

Result : Application dismissed for want of prosecution

Representation:

Applicant : No Appearance

Respondent : No Appearance

Reasons for Decision (Given Ex Tempore)

1         On 25 March 2024, Mr Glenn Stephen McDade (Applicant) referred a matter to the Western Australian Industrial Relations Commission (Commission) under the Public Sector Management Act 1994 (WA) (PSMA).

2         The application named Stephen McDade (Applicant’s representative) as representative for the Applicant in this matter, being a family member.

3         The application was served on the Department of Justice (Respondent) on 26 March 2024.

4         On 5 April 2024, the Respondent filed a response, submitting that the Applicant’s guilty pleading to charges on 15 January 2024, met the pre-conditions required for dismissal under s 82A(3)(b) of the PSMA.

5         The response was served on the Applicant’s representative on 9 April 2024.

6         On 8 April 2024, the Commission advised the parties of the allocation of the matter and sought availabilities to attend a Conciliation Conference.

7         On 15 April 2024, a Conciliation Conference was listed for 21 June 2024 as per the parties’ available dates.

8         On 20 June 2024, the Applicant’s representative emailed the Commission seeking an adjournment of the Conciliation Conference due to their work requirements. The Applicant’s representative said:

I regret to inform you that my plans to personally attend the conference tomorrow morning have been unexpectedly disrupted due to critical short staffing, necessitating my presence on duty today. Consequently, I am unable to travel to Perth today as planned.

9         On the same day, the Respondent consented to the Conciliation Conference being rescheduled to a later date.

10      The Commission granted the adjournment and subsequently sought availabilities to attend a rescheduled Conciliation Conference.

11      On 21 June 2024, the matter was listed for a Conciliation Conference on 18 July 2024, as per the parties’ availabilities.

12      On 18 July 2024, at 9.41 am the Applicant’s representative sent an email to the Commission advising that he will be unable to attend the Conciliation Conference due to illness. The Applicant’s representative said:

I have to regretfully advise that I have come down with Covid and didn't make the flight to Perth today.

13      Furthermore, the Applicant’s representative advised the Commission by email that he would be withdrawing his case due to a lack of time and resources available to pursue the matter.

I can also advise that the application will be reluctantly withdrawn as we do not have the time and resources to properly pursue this case. I will provide the Commission and Mr Carroll with the appropriate form in due course.

14      On the same day, the Conciliation Conference listed for 18 July 2024 was vacated.

15      On 13 January 2025, the Commission emailed the Applicant’s representative, referring to a lack of communication from the Applicant and provided a copy of a Form 1A Notice of Discontinuance, to the Applicant’s representative. The Commission sought views as to whether the Applicant wished to proceed with this matter and to provide a response by 28 January 2025.

16      The Applicant was warned in this email that a lack of future communication would result in a show cause hearing being listed. The Applicant did not respond to the request to file a Form 1A - Notice of Discontinuance.

17      On 24 March 2025, the parties were notified that a Hearing was listed for 4 August 2025 at 10:30 am. The email to the parties attaching the Notice of Hearing stated that the proceeding was a Show Cause Hearing for the Applicant to show cause why the matter ought not to be dismissed pursuant to s 27(1) of the Industrial Relations Act 1979 (WA) (Act). Further, the Applicant was advised that not attending would potentially result in the matter being dismissed for want of prosecution. The Applicant has not attended this Hearing.

18      I would note also, the Respondent has not attended. However, the Respondent was advised that there was no requirement for them to attend, given the onus is on the Applicant to show why this matter ought not to be dismissed.

19      I am satisfied the Applicant was served notice of the Hearing in accordance with reg 24(2) of the Industrial Relations Commission Regulations 2005 (WA) (Regulations). This was done on 24 March 2025. I note that reg 25(2) provides that service can be effected by sending the Notice of Hearing as an attachment to an email, sent to the email address that the Applicant has provided to the Commission.

20      I am satisfied that the hearing may proceed in the absence of the Applicant and Respondent.

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

22      The Applicant has not provided any reasons for failing to respond to requests from the Commission to advise whether they wish to discontinue proceedings as foreshadowed in the email on 18 July 2024 or whether the Applicant wished to proceed.

23      The Applicant’s representative was notified that this application may be dismissed if he did not attend the hearing.

24      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.

25      For these reasons, an Order under s 27(1)(a) of the Act dismissing the Applicant for failure to prosecute and insufficient interest will issue.