REFERRAL OF A DECISION TO TERMINATE EMPLOYMENT ON 25 OCTOBER 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00036

DELIVERED : Friday, 23 January 2026

FILE NO. : P 2 OF 2025

Applicant

AND

Director General, Department of Premier and Cabinet

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal application – Extension of time – Whether application ought to be accepted outside the prescribed timeframe – Relevant principles applied – Extension of time refused – Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Industrial Relations Commission Regulations 2005 (WA)

  Industrial Relations Legislation Amendment Act 2024 (WA)

Result : Application for extension of time dismissed

Representation:

Applicant : Mr A P Brender-A-Brandis

Respondent : Mr D Anderson (of counsel)

Case(s) referred to in reasons:

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 283

Reasons for Decision

1         On 5 February 2025, Mr André Pedro Brender-A-Brandis (applicant) applied to the Western Australian Industrial Relations Commission (the Commission), under s 29(1)(c) of the Industrial Relations Act 1979 (WA) (the Act) in relation to the termination of his employment with the Director General, Department of Premier and Cabinet (respondent).

2         It is not contested that the applicant resigned from his employment on 25 October 2024. The applicant claims he was unfairly dismissed because his resignation was forced as a result of the respondent’s conduct. The applicant seeks compensation for loss caused by the termination of his employment.

3         The application is made 103 days after the applicant’s resignation from employment. Section 29(2)(a) of the Act provides that applications be filed within 28 days of the termination of employment. Therefore, this application is filed 75 days beyond the prescribed time limit.

4         Section 29(3) of the Act provides that the Commission may accept a referral that is out of time if the Commission considers it would be unfair not to do so.

5         The respondent opposes the granting of an extension of time, because of the length of the delay and the prejudice to the respondent.

6         I must decide whether to accept the application made after the prescribed time.

7         The principles to be applied by the Commission to determine whether an application ought to be accept ‘out of time’ are set out by the Industrial Appeal Court in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683 (Malik). As Heenan J summarised citing Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the principles to be adopted are:

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 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. [74]

Application process history

8         On 15 January 2025, the applicant submitted a claim to the Industrial Magistrates Court (IMC) for damaging action and unfair dismissal. On 17 January 2025 the IMC requested that he separate the claims to the IMC and unfair dismissal application to the Commission.

9         On 27 January 2025, the applicant submitted a Form 2 - Unfair Dismissal Application (Form 2) to the Commission’s Registry.

10      On 28 January 2025, the Commission’s Registry emailed the applicant about his Form 2:

Dear Mr Brender-A-Brandis,

I refer to the attached Form 2 – Unfair Dismissal Application (Form 2) and our telephone conversation this morning.

As discussed, ordinarily a government officer or public service officer would not make an unfair dismissal application via the Form 2 process. This is because there is a dedicated appeal process for government officers and public service officers. As the Public Service Arbitrator has exclusive jurisdiction to deal with industrial matters relating to government officers, you may need to consider potential jurisdictional issues with regard to the Form 2 – Unfair Dismissal Application.

The Form 8B – Notice of Appeal - Government Officers, Public Service Officers is for use when initiating an appeal before the Public Service Appeal Board. Further information can be found here. I have also attached blank copies of the form for your convenience.

Upcoming Changes to State Employment Laws

As discussed, amendments to the Industrial Relations Act 1979 (WA) will commence on 31 January 2025. This includes the abolition of the Public Service Arbitrator and the Public Service Appeal Board. More information provided by the Department of Energy, Mines, Industry Regulation and Safety can be found here and in the attached fact sheet.

I confirm the Registry will hold your Form 2 for seven days to allow you the opportunity to seek clarification and/or advice on how to refer your matter to the Commission. By no later than close of business, 4 February 2025, please provide your intentions regarding the Form 2.

If you wish to proceed with the Form 2, you will need to contact the Registry on (08) 9420 4444 to organise payment of the $50.00 filing fee.

If you wish to seek external legal or industrial advice, I have identified organisations below which may be able to assist you.

Circle Green Community Legal

Telephone: (08) 6148 3636

Website: https://circlegreen.org.au/get-help/

Law Society of Western Australia

Telephone: (08) 9324 8600

Website: https://www.lawsocietywa.asn.au/

Legal Aid WA

Telephone: 1300 650 579

Website: https://www.legalaid.wa.gov.au/

Please do not hesitate to contact the Registry by telephone on (08) 9420 4444, or by email to registry@wairc.wa.gov.au, if you have any queries in relation to this email.

11      On 4 February 2025, the applicant requested the withdrawal of the Form 2. On 5 February 2025, the applicant filed a Form 5 -Application to Refer a Public Sector Matter (Form 5) to the Commission, in relation to a decision to dismiss an employee. The Form 5 was 75 days outside of the 28-day period to apply to the Commission for unfair dismissal. The applicant is a government officer pursuant to s 36AB of the Act, and therefore, would have been covered by the jurisdiction of the Public Service Appeal Board if his application was filed during the 28-day timeframe. 

12      The respondent submits the applicant was made aware by the Commission’s Registry on 28 January 2025, that he had attempted to bring an application for unfair dismissal in the wrong jurisdiction. The respondent contends that the applicant chose to wait for the abolishment of the constituent authorities before bringing an application for unfair dismissal to the Commission on 5 February 2025. Further, the respondent argues that the communication from the Commission’s Registry clearly conveyed the need to act with haste to be able to make the application before the Public Service Appeal Board was abolished.

Reasons for delay

Health

13      The applicant submits his mental state contributed to the delay because he has sustained adverse public and psychological health impacts including suffering stress, anxiety and sleeping disorders. The applicant says he is mentally exhausted because of the toll of the 18 months of prolonged adverse behaviours directed toward him by the respondent. The applicant says he has been required to take a significant period of leave from work, and that he has been undertaking medical treatment with his General Practitioner, along with psychological treatment. Following his resignation, the applicant says he has undertaken personal recovery for his mental wellbeing including respite.

14      The applicant submitted a medical certificate dated 17 December 2024 into evidence, concerning the applicant’s treatment for ‘severe work-related stress’ since 28 November 2023. The certificate states that the medical practitioner had recommended extensive periods of leave as he was unfit for work given the circumstances and presenting symptoms.

15      The respondent maintains that the applicant’s capacity to complete the steps necessary to make an application to the Commission in the prescribed period, or within a significantly less period, were not impaired. The respondent refers to the applicant’s 12-page letter to the respondent dated and signed 23 December 2024, in which the applicant responded to allegations of misconduct. The respondent argues that the capacity required to compose and submit the letter is the same as required to make an application to the Commission. As such, the applicant could have undertaken the task of making an application at that time. However, the applicant waited until 15 January 2025 to lodge a claim to the IMC.

16      The respondent contends that during the relevant periods, the applicant actively engaged in his duties and responsibilities as a Councillor for the City of South Perth, and this diminishes his reasoning that he was not mentally capable of lodging an application at that time. The applicant had approved leave from his responsibilities as a Councillor for the period 23 October 2024 to 30 November 2024. The applicant attended the December meeting of the Council.

17      I find the medical certificate does not specifically address the applicant’s fitness to initiate nor participate in proceedings concerning his termination from employment. The medical certificate is general in nature and refers to the medical practitioner’s recommendation that the applicant take extensive periods of leave as he was unfit for work. I note the medical certificate does not specify the periods of leave. Furthermore, there is no medical evidence for the period between 17 December 2024 and 5 February 2025. In my view, medical evidence submitted by the applicant does not adequately address the applicant’s capacity to initiate an application concerning his termination. I am not satisfied the applicant’s health presented an impediment to making an application within the prescribed time or a significantly lesser period than what he took.

18      On 10 December 2024, the applicant commenced employment with the Rottnest Island Authority (RIA) through an arrangement with Hays Recruitment.

19      I agree that the applicant certainly had capacity to complete the process for making an application concerning the fairness of his termination to the Commission in December 2024, evidenced by his capacity to compose a lengthy response to the allegations of misconduct.

20      In addition, I agree that the applicant’s capacity to undertake his duties as a Councillor with the City of South Perth, indicates his health and mental wellbeing did not impede him from undertaking active participation in a variety of tasks.

21      I am not satisfied the applicant has a reasonable explanation concerning his health for the delay. This factor weighs against granting leave to extend the prescribed time to file an application.

Overseas holiday

22      The applicant gave evidence that the timing of his application was impacted by his overseas holiday between 31 October 2024 and 26 November 2024. The applicant’s evidence is the holiday had been planned one year earlier.

23      The respondent contends the applicant was not impeded from making an application before he proceeded on his holiday and/or shortly after his return. The respondent argues that despite the applicant’s contention the overseas holiday had been planned one year earlier, an application for annual leave had not been made to the employer at the time. The respondent speculates that the applicant had exhausted his accrued paid personal leave and resigned knowing he would shortly leave for his overseas holiday.

24      The applicant has not provided any reasons for a planned overseas holiday being a barrier to not being able to lodge his application before he commenced his holiday, during his holiday nor in the period shortly after he returned from overseas.

25      This consideration weighs against granting an extension.

Collation of extensive documents

26      The applicant says the requirement to collate an extensive amount of material regarding the respondent’s damaging actions experienced over 18 months during his employment, contributed to the delay. The applicant claims he commenced the application process during December 2024.

27      I note the Form 5 completed by the applicant states that documents in support of an application, may be attached if they are useful to the Commission and the respondent. On the Form 5, the applicant confirmed under the heading ‘Document Checklist’ that pursuant to the Industrial Relations Commission Regulations 2005 (WA) (the Regulations), he did not require any further documents to be attached. Nevertheless, the applicant attached 359 pages of documents to his application. Under the Regulations, it was not necessary to collate and attach the extensive amount of documentation in support of the application.

28      The requirement to make an application within the specified time period under the Act, ought to have been favoured over the collation of documents. I find this consideration weighs against granting an extension.

Steps taken to contest the dismissal

29      The applicant’s evidence is that he raised his concerns regarding the respondent’s decision to transfer him to another role several times over a lengthy period. The applicant submitted a copy of a letter dated 24 April 2024 from his lawyers to the respondent concerning the applicant’s claims that he experienced bullying, harassment and victimisation during his employment. The applicant purportedly informed the respondent that he may commence a damaging action claim, and submits the respondent was on notice that he may commence proceedings concerning the respondent’s conduct.

30      The applicant submitted a copy of a second letter, which was also dated 24 April 2024 from his lawyers to the respondent, concerning an investigation of claims that the applicant may have committed a breach of discipline. The applicant’s letter was in response to the respondent’s letter dated 21 March 2024, which the applicant also submitted into evidence.

31      Furthermore, the applicant wrote to the respondent on 23 December 2024 regarding allegations of misconduct.

32      The respondent submits that prior to 5 February 2025, the respondent was not aware of any attempt by the applicant to commence litigation concerning his alleged constructive dismissal, which occurred in October 2024. This is because the applicant had not taken any steps after resigning to inform the respondent he planned to contest the cessation of his employment.

33      The applicant’s correspondence to the respondent through his lawyers on 24 April 2024, is well before his resignation. The letter does not refer to the applicant considering action should he believe that he must resign. It cannot be said that the correspondence dated 24 April 2024, conveyed to the respondent the possibility of the applicant taking action to contest the fairness of the cessation of his employment on 25 October 2024.

34      Similarly, the applicant’s letter dated 23 December 2024, was composed some months after the applicant’s resignation, addressing misconduct allegations which do not make any reference to contesting the termination of his employment.

35      The applicant gave evidence that he engaged WorkSafe and submitted copies of two improvement notices issued following complaints raised on and after 13 October 2023. One improvement notice concerned the lack of provisions for a physical or psychological risk assessment. The second improvement notice concerned the provision of a safe system of work and procedure to manage and control psychological risk and hazards. The applicant gave evidence that he notified WorkSafe of an injury in November 2024, and a subsequent investigation by WorkSafe resulted in the issuance of the two improvement notices.

36      The applicant attested that he also complained to the Human Rights Commission. He recalled that the complaint was made sometime in July 2024, and the complaint was subsequently amended on or after January 2025.

37      I find the applicant has not taken any other steps to contest the termination of his employment since his resignation on 25 October 2024. Much of the applicant’s evidence concerns events that are prior to the applicant’s resignation and cannot be said to be contesting his termination. The applicant’s correspondence with the respondent following the notification of his resignation, does not contest his termination, nor does it inform the respondent that he considered his termination to be a constructive dismissal, and that it was unfair, harsh or oppressive. This factor weights against granting an extension of time.

Fairness to others in similar position as the applicant

38      The applicant seeks a remedy of compensation and in his Form 5, he states:

 I do not want my job back, as I no longer consider reinstatement as an employee at the Department possible or acceptable.

 Based on an employment environment with psychologically unsafe conditions, the damaging actions I had been subject to, and the decision to demote me to Project Manager Grants, I was unable to see a realistic pathway forward whereby I could continue my employment. I no longer consider reinstatement as an employee at the Department possible or acceptable. Please refer to the attached statement for further information.

Rather than reinstatement as an employee as the Department, I am seeking compensation.

39      The ability to seek a remedy of compensation for government officers was made available by amendments to the Act under the Industrial Relations Legislation Amendment Act 2024 (WA). The amendments to the Act took effect from 31 January 2025. Before this date, government officers were not eligible for compensation and the remedy available was limited to reinstatement.

40      At the Directions Hearing on 8 May 2025, the parties were requested to address the effect of the legislative changes on the issues in this matter.

41      The applicant submits his understanding was that he could make one application concerning all the issues he has with his employment with the respondent to the IMC. The applicant was seeking to access an avenue that would encompass his claims concerning sexual harassment.

42      The applicant is only able to attain compensation under the current statutory framework because his application is out of time. Clearly it is unfair for the applicant to access a remedy not available to other persons in a like position who did apply to the Public Service Appeal Board in time and therefore cannot attain compensation.

43      This consideration weighs against granting the application leave to be filed outside of the prescribed time limit.

Prejudice to the respondent

44      The applicant submits that there is no additional prejudice to the respondent given the relatively short period of time that has elapsed.

45      The applicant says there is not a significant amount of time which would result in the respondent being unlikely to locate former employees and summons each of them to the proceedings. Further, the applicant says the respondent’s own actions and conduct, result in the release of employees from employment with the respondent who are subject to the applicant’s grievances.

46      As stated earlier in my reasons, the applicant is only able to attain compensation because his application is out of time. This is directly prejudicial to the respondent and weighs against the granting of an extension of time.

Merits of the application

47      In Malik, a further consideration is whether the applicant’s claim is likely to succeed or not. It would not be unfair to refuse to accept an application, if the claim of unfair dismissal is not likely to succeed. For the purposes of deciding whether to accept an application outside of the prescribed time, the assessment of the merit of the claim need only be ‘fairly rough and ready’: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [9] per Brennan CJ & McHugh J.

48      The applicant submits the claim will be successful because the treatment of the respondent left him with no alternative but to resign. The applicant argues that he has considerable evidence concerning the grievances he formally lodged with the respondent. He claims the evidence portrays the respondent’s lack of action, flawed investigations and incorrect findings towards these grievances. The applicant says there is evidence that the respondent treated him inappropriately as a response to the grievances he made.

49      The respondent says the applicant’s claim cannot succeed because he voluntarily resigned and there was no dismissal at the initiative of the employer. That is, the jurisdictional fact of a dismissal being a termination at the initiative of the employee must be found to engage the Commission’s jurisdiction.

50      The respondent submits that it is not necessary to consider the merits of the application in this matter because the length of the delay and the prejudice to the respondent weigh against granting the extension of time.

51      I consider it is only necessary to conduct an assessment of the merits of the claim where the other factors are in favour of granting an extension. In this matter, I have found that the factors outlined in Malik weigh against granting an extension.

52      This factor is neutral.

Conclusion

53      I have found that the length of delay was significant warranting a satisfactory explanation for the delay. I do not consider the explanations of the applicant are satisfactory. There is prejudice to the respondent, and it would be unfair to persons in a similar situation to the applicant if the application was accepted outside of the prescribed timeframe under the Act. The applicant has not demonstrated that he took alternative steps to contest his alleged dismissal.

54      For the reasons above, I decline to accept the application out of time.