UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00914

DELIVERED : Friday, 7 November 2025

FILE NO. : U 90 OF 2023

Applicant

AND

Downer Engineering Power Pty Ltd

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal application – National system employer – Jurisdictional objection –Failure to prosecute application – s 27(1)(a) of the Industrial Relations Act 1979 (WA) – Application dismissed for want of prosecution

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

  Fair Work Act 2009 (Cth)

Result : Application dismissed for want of prosecution

Representation:

Applicant : No Appearance

Respondent : No Appearance

Reasons for Decision (Given Ex Tempore)

1         Mr Kevin George Lovell (applicant) filed an application with the Western Australian Industrial Relations Commission (Commission) on 23 November 2023, alleging his dismissal by Downer Engineering Power Pty Ltd (respondent), was unfair.

2         On 19 December 2023, the respondent filed its response and contended that the Commission does not have jurisdiction to determine this application. The respondent submitted they are a trading corporation and a National System Employer for the purposes of the Fair Work Act 2009 (Cth) and therefore not covered by the State Industrial Relations System.

3         Further, the respondent also alleges the Commission does not have jurisdiction, as the applicant was not an employee of the respondent; they were contracted through a labour hire agency in which the respondent had an arrangement with.

4         Notwithstanding the respondent’s view that the Commission lacked the necessary jurisdiction, the respondent agreed to engage in conciliation.

5         On 7 February 2024, a conciliation conference was held for the purpose of facilitating discussion to resolve matters. The respondent committed to providing an update to the applicant, as to whether the report he submitted regarding site matters had been actioned.

6         On 22 March 2024, the respondent emailed the Commission and the applicant as follows:

Dear Commissioner Walkington

As an outcome of the conciliation in matter U 90/2023, and notwithstanding the fact the Respondent, Downer Engineering Power Pty Ltd (Downer) is a national system employer covered by the Fair Work Act 2009 (Cth) (and the WAIRC has no jurisdiction to deal with this application), Downer committed to providing an update to Mr Lovell as to whether the report he made regarding site matters had been received and considered.

There was a delay in providing this due to the relevant site contact being on a period of R&R and Ms Elkins resigning from the business.

I have now been provided with a timeline of events and actions taken by the business in response to Mr Lovell’s concerns.

…

The business confirms that Mr Lovell’s complaint was received, investigated and treated seriously.  Mr Lovell has been copied into this email by way of service. 

On the basis that the WAIRC does not have jurisdiction to deal with this application, we respectfully request that the application be dismissed.

7         On 10 April 2025, the Commission emailed the parties, noting no further communication had been received in relation to this matter, and requested that the applicant file a Form 1A – Notice of Discontinuance to discontinue the application.

8         On 21 July 2025, the Commission sent a further email asking the applicant to confirm their intentions, or to file a Form 1A – Notice of Discontinuance if they no longer wished to proceed.

9         On 22 August 2025, the Commission advised that if there was no further correspondence, or if a Form 1A – Notice of Discontinuance was not filed and returned to the Commission’s Registry, a Show Cause Hearing would be listed for the applicant to show cause why the matter ought not be dismissed pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act).

10      On 9 September 2025, noting there was no response received from either party, the Commission listed a Show Cause Hearing for 4 November 2025 at 10:30 am, for the applicant to show why the matter ought not be dismissed for want of prosecution.

11      Both parties were issued with a Notice of Hearing by email on 9 September 2025. The email notified the applicant that should he not attend the show cause hearing listed for 4 November 2025, his application may be dismissed for want of prosecution.

12      On 20 October 2025, the Show Cause Hearing was re-listed to 6 November 2025. Both parties were issued with a ‘Notice of Hearing’ by email on the same day.

13      The applicant did not attend the hearing. I am satisfied the Applicant was properly notified of this hearing in accordance with the IR Act and the Industrial Relations Commission Regulations 2005 (WA) and the hearing may proceed in his absence.

14      I note also that the Respondent did not attend, however, the respondent was advised that their appearance was not required.

15      I am satisfied that the applicant has been given a reasonable opportunity to be heard on why his application ought not be dismissed for want of prosecution or lack of jurisdiction. The applicant has been given several opportunities to communicate with the Commission, and he has not done so.

16      Further, the respondent’s correspondence on 22 March 2024 indicates the matter has been resolved, and there has been no communication from the applicant to say otherwise.

17      Given the lack of any communication from the applicant, I consider the applicant has failed to progress his application and does not have sufficient interest in the matter. As such, I will dismiss the application for want of prosecution.