The Western Australian Industrial Relations Commission

STOP BULLYING ORDER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00029

DELIVERED : Thursday, 22 January 2026

FILE NO. : S 16 OF 2025

Applicant

AND

Department of Planning Lands and Heritage,

Principal Respondent

Santa Cardenia

Individual Respondent

CatchWords : INDUSTRIAL LAW (WA) – stop bullying application – nil prospects of success once applicant resigned from employment - proceedings maintained for collateral purpose – s 27(1)(a) – abuse of process – further proceedings not in public interest – application dismissed

Legislation : Industrial Relations Act 1979 (WA)
Public Sector Management Act 1994 (WA)  

Result : Application dismissed

Representation:

Applicant : No appearance

Principal Respondent : Mr M McIlwaine on behalf of the Department of Planning Lands and Heritage

Individual Respondent: Ms S Cardenia on her own behalf

Solicitors:

Principal Respondent : State Solicitor’s office

Case(s) referred to in reasons:

Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] 239 CLR 75; (2009) HCA 43

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431

Reasons for Decision

1         The Commission listed this matter, being a stop bullying application, for a hearing requiring the applicant to show cause why her application should not be dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act), specifically, on the grounds that further proceedings are not necessary or desirably in the public interest, or for any other reason that the matter should be dismissed or the hearing of it discontinued.

2         The relevant procedural history is as follows.

3         The application was lodged on 2 September 2025.

4         A conciliation conference was held on 12 September 2025. The matter was not resolved by conciliation.

5         On 30 September 2025, the lawyer acting for the principal respondent, the Department of Planning, Lands and Heritage advised the Commission that   the Department had commenced a disciplinary process in relation to allegations of misconduct involving the applicant, as outlined in Part 5 of the Public Sector Management Act 1994 (WA), and that the applicant had been suspended on full pay as part of the process. The Department requested that the proceedings be paused until 31 October 2025 while the statutory disciplinary process proceeds, on the basis that any risk of ongoing bullying (which is denied) is eliminated while the applicant was suspended.

6         On 2 October 2025, the applicant agreed to the Department’s request to adjourn the proceedings until the end of October.

7         Having not heard from either party subsequently, on 5 November 2025, the Commission noted that the matter had been adjourned to 31 October 2025 and enquired whether it was appropriate for a conference to be reconvened.

8         On 6 November 2025, the Department’s lawyer advised the Commission that the applicant remained suspended on full pay during a disciplinary process, and that it understood the applicant had resigned from her employment with the Department and taken employment with another public sector agency. In those circumstances, the Department was of the view that these proceedings should be discontinued by the applicant. 

9         The Commission then asked the applicant whether it was her intention to file a notice of discontinuance, and if so, when she would do so.

10      In response, on 7 November 2025, the applicant advised that she would discontinue the claim as she would be leaving the Department.

11      Following receipt of the applicant’s email, on 7 November 2025 the Commission provided the applicant with information on how to discontinue her claim, with a link to the appropriate form for that purpose.

12      Ten days went by, and the applicant had not filed a notice of discontinuance. On 18 November 2025, my chambers wrote to the applicant asking her when she anticipated a notice of discontinuance would be filed.

13      The applicant responded on 18 November 2025:

‘Before I proceed with completing the discontinuation form, I am awaiting the outcome of the investigation currently being conducted by the Department of Planning, Lands and Heritage (DPLH) regarding alleged breaches of discipline.’

14      My chambers wrote to the applicant in these terms on 18 November 2025:

‘Could you please elaborate on your view that the proceedings should be maintained until the outcome of the investigation has been communicated, in circumstances where the proceedings seek orders relating to a workplace where you are no longer employed?

Please also note that, in the event you are unable to provide a proper explanation, the application will be listed for a hearing to show cause why it should not be permanently stayed or dismissed pursuant to section 27(1)(a) of the Industrial Relations Act 1979 (WA).’

15      The applicant submitted:

‘I acknowledge the point raised regarding my impending departure from the Department of Planning, Lands and Heritage (DPLH). However, I respectfully submit that the proceedings should be maintained until the outcome of the investigation has been communicated for the following reasons:

Continuing employment until 28 November 2025: I remain an employee of DPLH until my final day of service. As such, the allegations and disciplinary process are still directly relevant to my employment status and professional standing.

Temporal link to my application: The alleged breaches of discipline were issued to me immediately upon my return from leave, and notably after I had lodged my stop bullying application. This timing suggests the matters are connected, and therefore the proceedings are not redundant but integral to ensuring procedural fairness.

Substantial rebuttal already provided: I have submitted a comprehensive 20‑page rebuttal addressing each allegation in detail. Despite this, I have received no communication from DPLH unless initiated by myself. It is important that these matters are finalised to ensure closure and to prevent unresolved allegations from impacting my professional reputation as I transition to a new department.

Fairness and integrity of process: Allowing the proceedings to continue until the investigation outcome is communicated ensures that the process is transparent, fair, and complete. To dismiss or stay the application prematurely would risk undermining both the integrity of the investigation and my right to have the allegations properly addressed.

For these reasons, I respectfully request that the proceedings be maintained until the investigation outcome is formally communicated.’

16      On 19 November 2025, my chambers advised the applicant:

‘The Senior Commissioner has had regard to the reasons you provided, and determined that unless a notice of discontinuance is filed by 1 December 2025, the matter ought to be listed for the applicant to show cause why the proceedings should not be dismissed or permanently stayed. ‘

17      On 23 December 2025, notices were issued of the show cause hearing.

18      On 12 January 2025, the applicant advised my chambers by email that she would not be attending the show cause hearing. She was again invited by my chambers to file a notice of discontinuance, to avoid necessitating a hearing, using the Commission’s time and resources, and incurring costs and inconvenience to the other parties.

19      The applicant has not communicated further with the Commission, has not filed a notice of discontinuance, and did not appear at the show cause hearing.

20      The Commission cannot make the stop bullying orders sought in the application unless the Commission is satisfied, first, that a person bullied the worker at work; and second, that there is a risk the person will continue to do so: IR Act s 51BM. Obviously, if the applicant is leaving the employment with the employer, the second criteria cannot be satisfied. Her claim has no prospects of success.

21      It is sufficiently clear to me from the history I have recited, that the applicant has no intention of continuing, progressing or prosecuting this claim and has only maintained it for a collateral purpose. Further, the applicant’s failure to file a notice of discontinuance in these circumstances is unreasonable, and has unnecessarily inconvenienced the Commission and the other parties.

22      The applicant’s conduct in this regard is an improper and illegitimate use of the Commission’s process.

23      In Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, McHugh J observed at [16]:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1) the court's procedures are invoked for an illegitimate purpose;

(2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or

(3) the use of the court's procedures would bring the administration of justice into disrepute.

24      See also Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] 239 CLR 75; (2009) HCA 43. The applicant’s conduct falls into each of these three categories and is an abuse of the Commission’s process.

25      Section 27(1)(a) of the IR Act empowers the Commission to dismiss any matter before it at any stage of the proceedings if satisfied that:

(i) The matter is trivial; or

(ii) That further proceedings are not necessary or desirable in the public interest;

(iii) That the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) That for any other reason the matter or part should be dismissed

26      The power to dismiss a matter under s 27(1)(a) is to be exercised sparingly and with caution: The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431. A finding that an applicant has engaged in an abuse of the Commission’s process is a circumstance that falls within s 27(1)(a) as a reason for dismissing proceedings, in the public interest. So too is a finding that a claim is without any prospect of success. Both conditions are met in this case.

27      I am satisfied that further proceedings in this matter are not necessary or desirable in the public interest.

28      I dismiss the application under section 27(1)(a) of the IR Act.