UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00053

DELIVERED : Friday, 30 January 2026

FILE NO. : U 98 OF 2025

Applicant

AND

Shire of Coorow

Respondent

CatchWords : INDUSTRIAL LAW (WA) - Unfair dismissal claim - section 27(1)(a) - Show cause why proceedings ought not to be dismissed - want of prosecution - delay, default and indifference - inability to fairly hear and try claim - justice requires claim be dismissed

Legislation : Industrial Relations Act 1979 (WA)

Result : Application dismissed

Representation:

Counsel:

Applicant : No appearance

Respondent : Mr A Sinanovic (of counsel) on behalf of the Shire of Coorow

Solicitors:

Respondent : Kennedys

Case(s) referred to in reasons:

Acosta v Daring Holdings Pty Ltd trading as All Bend Engineering [2005] WAIRC 03111; (2005) 85 WAIG 03111

Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273

The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398

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

The Australian Workers’ Union West Australian Branch Industrial Union of Workers v Barminco Pty Ltd Plutonic Project [2000] WAIRC 13162

Roddan v Gwilliam and Anor [2005] WASCA 209 [42].

Smith v Bank of Western Australia Limited [2010] WASCA 15

Reasons for Decision

1         On 29 January 2026 I made orders dismissing this claim pursuant to section 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act). These are my reasons for that order.

2         Section 27(1)(a) 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 that the matter or part should be dismissed or the hearing of it discontinued, as the case may be.

3         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.

4         This matter was listed for the applicant to show cause why his claim should not be dismissed pursuant to s 27(1)(a) of the IR Act for want of prosecution or alternatively for failure to comply with the Commission’s orders.

5         The relevant chronology is as follows:

(a)               The termination of the applicant’s employment took effect on 6 August 2025. The reason for the termination was that the applicant was alleged to have engaged in aggressive and unacceptable behaviour in breach of the Employee Code of Conduct, specifically in his interactions with his supervisor on 23 July 2025.

(b)               He filed his unfair dismissal application with the Commission on 1 September 2025.

(b) The application was listed for a conciliation conference on 9 October 2025. The applicant was granted leave to appear remotely at the conciliation conference.

(c) On 24 September 2025, the applicant sought an adjournment of the conciliation conference. He advised my chambers that he was unavailable to attend on 9 October 2025 due to work commitments, having secured alternative employment.

(d) The conciliation conference scheduled for 9 October 2025 was vacated and relisted on 23 October 2025.

(e) On 6 October 2025, the applicant sought another adjournment of the conciliation conference. On 20 October 2025, the conference scheduled for 23 October 2025 was vacated and relisted for 31 October 2025 to accommodate the applicant’s availability.

(f) The conciliation conference took place on 31 October 2025 but did not result in resolution of the applicant’s claim.

(g) On 3 November 2025, my chambers notified the parties that the application was listed for a directions hearing on 27 November 2025. The applicant requested to appear at the directions hearing remotely and this request was granted.

(h) On 26 November 2025, the respondent’s lawyers wrote to the applicant ahead of the directions hearing asking the applicant how many witnesses he intended to call and how long he anticipated he would need to file witness statements to assist with scheduling the matter and ascertaining how many days would be needed for a final hearing.

(i) The applicant responded to the respondent’s lawyers on 27 November 2025 to the effect that he was unable to say how many witnesses he would call and that he may have to seek a subpoena for one witness. This response was forwarded to my associate on the same day at 11:33 a.m.

(j) The directions hearing was held at 2:15 p.m. on 27 November 2025. The applicant failed to attend the directions hearing either in person or remotely.

(k) Orders were made at the directions hearing for the applicant to file outlines of witness evidence and any documents he would rely upon at the final hearing by no later than 5 January 2026. The orders gave the applicant a generous period of time to prepare and file these documents. The orders adjourned the directions hearing to 29 January 2026 and granted the applicant leave to appear at the adjourned directions hearing remotely.

(l) Also on 27 November 2025, my chambers sent an email to the applicant attaching the directions made on that day, the Commission’s Fact Sheet about hearings, its Fact Sheet about evidence and Practice Note 9 of 2021 concerning outlines of witness evidence. My chambers also sent the applicant notice of the directions hearing on 29 January 2026 at 10.00am.

(m) On 29 November 2025, the applicant emailed his thanks to my chambers for the 27 November 2025 emails.

(n) Despite having received copies of the directions issued on 27 November 2025, the applicant failed to comply with them. He did not file any outlines of witness evidence or documents he would seek to rely upon at hearing. To date, he has still not done so.

(o) On 6 January 2026, the respondent’s lawyers wrote to the Commission noting the applicant’s default in compliance with the orders and requesting that the matter be listed for a hearing for the applicant to show cause why the claim ought not be dismissed for want of prosecution or for default in compliance with the orders.

(p) On 6 January 2026, the Commission emailed the parties indicating that the respondent’s lawyer’s email would be treated as an application for the dismissal of the proceedings and the applicant was directed to file an affidavit setting out the facts which he relies upon to explain his non-compliance with the orders made on 27 November 2025, by no later than 16 January 2026.

(q) The applicant filed a statutory declaration on 16 January 2026. In it, he states that he understood that if there was more evidence he was relying on, he would have to file it in accordance with the orders but all of the evidence he had, he had already provided to the Commission. He concludes in his statutory declaration ‘I do apologise for any miss understandings [sic] as I am not a lawyer and have to juggle time to make things work.’

(r) On the morning of 29 January 2026, the applicant contacted my chambers to confirm that he intended to attend the hearing that day in person.

(s) Despite this, the applicant did not attend the hearing at the time listed of 10.00am. The hearing proceeded in his absence.

(t) While the hearing was in progress, the Commission received Mr Curnow’s voicemail indicating that he was ‘trying to find a place to park.’

(u) The applicant arrived at the Commission after the conclusion of the hearing on 29 January 2026.

6         It has long been recognised that what is known as want of prosecution in civil courts is a ground for invoking the power to dismiss under s 27(1)(a)(ii) and s 27(1)(a)(iv). The principles that apply are the same principles that apply in the civil courts: The Australian Workers’ Union West Australian Branch Industrial Union of Workers v Barminco Pty Ltd Plutonic Project [2000] WAIRC 13162.

7         The principles were restated by Newnes JA in Smith v Bank of Western Australia Limited [2010] WASCA 15 [78]:

The principles applicable to an application to dismiss an action for want of prosecution were set out in The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [99] - [100] as follows:

The general principles... include consideration of these points:

(a) whether any default has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or

(b) whether there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyers, and, if so

(c) whether such delay:

(i) will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or

(ii) is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.

But as with so many areas in the law, it is one thing to identify general principles and another properly to apply them. It should always be borne in mind that the power to dismiss for want of prosecution calls for the exercise of discretion. It is a discretion that must be exercised judicially but is otherwise open. It exists to serve the ends of justice. Caution should therefore be employed so that these general principles are ... not elevated to the level of a 'test' or a 'rule'. They are more appropriately to be seen as guidelines indicating some of the matters to which the court should have regard in exercising the discretion. The court's discretion to dismiss an action for want of prosecution is not fettered by any absolute or inflexible rules. There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:

• the length of the delay;
• the explanation for the delay;
• the hardship to the plaintiff if the action is dismissed and the cause of the action left statute-barred;
• the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
• the conduct of the defendant in the litigation.

Ulowski v Miller [1968] SASR 277, 280; Dzienciol v Logie Brae Pty Ltd, unreported, FCt SCt of WA, Library No 980078, 25 February 1998.

8         The critical issue is whether allowing the applicant’s case to proceed will inflict unnecessary injustice on the respondent:  Smith per Pullin JA at [18].

9         It is the cumulative effect of delay that needs to be considered. That is, the delay from the time of inception of the proceedings to the time the application for dismissal is made. The Commission should not compartmentalise the assessment of prejudice by reference to discrete periods: Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 [25], [42] and [61].

10      It is the applicant’s responsibility to pursue and progress his claim: Acosta v Daring Holdings Pty Ltd trading as All Bend Engineering [2005] WAIRC 03111; (2005) 85 WAIG 03111 at [30].

11      Expedition is especially desirable in unfair dismissal cases. Ass Chief Commissioner Beech said in Acosta [22] – [24]:

22 It should be well understood that claims of unfair dismissal should be dealt with promptly. This is largely because reinstatement is the primary remedy under the Industrial Relations Act, 1979. The Commission must deal in practical solutions and reinstatement is a more difficult remedy to order when much time has elapsed since the dismissed employee was last in the workplace. Even when, as it is here, reinstatement is not claimed that does not mean that a claim of unfair dismissal can just languish at the applicant’s choosing. Reinstatement is the primary remedy prescribed under the Act and the Commission is still obliged to consider it even if it is not sought.

23 Claims of unfair dismissal must therefore be dealt with sooner, not later. The Commission has consistently held so on many previous occasions (see Culverhouse v John Septimus Roe Anglican Community School (1995) 75 WAIG 1960 where two and a half years passed because the employee elected to first pursue an alternative remedy through the internal Anglican Church processes and was ultimately unsuccessful; Lewicki and Others v H.B. Brady Co Pty Ltd (1990) 70 WAIG 4143 where the applicants through their agent contributed to a year and half’s delay, leading to an overall delay of three and a half years; Taylor v S.G.S. Australia Pty Ltd (1993) 73 WAIG 3483 where Mr Taylor did not lodge his claim until eighteen months after the dismissal; MacNamara v Robert Geoffrey Baker t/a Bob's Lawn and Garden Service (1994) 74 WAIG 2387 where the applicant did not request a hearing and eighteen months passed and the application was discontinued by the Commission. A similar conclusion was reached by the Industrial Relations Commission of SA referring to a delay of approximately eleven months between the employee seeking advice and lodging his claim, nine months of which was clearly the responsibility of the employee (SA Health Commission v Gibbons (1995) 61 IR 1 at 7). In Jose v Milne Feeds Pty Ltd (1996) 76 WAIG 2459 a further delay of ten months was seen as critical and in Swinden v Vessey Chemicals (WA) Pty Ltd (1989) 71 WAIG 766 a delay of fifteen months in prosecuting a claim was held to be too long.

24 For the employer, too, who is obliged to defend a claim that (usually) is seen by the employer as unfounded, it is important that such claims be dealt with promptly. It can be quite time consuming, and even expensive both in time and money, to defend a claim; all the more reason for it to be dealt with promptly.

12      There is no doubt that this matter is progressing at a slow pace and without the speed warranted in unfair dismissal claims. It is now five months since the application was filed and, primarily because of the applicant’s failure to comply with the 27 November 2025 orders, it is far from being ready for hearing.

13      The slow progress of the claim is due in some part to the applicant’s requests to defer the compulsory conciliation conference. His requests for adjournments were ultimately acceded to by the respondent and the Commission. I do not suggest the delays in the conciliation conference taking place are not adequately explained. However, having indulged the applicant’s requests to delay the conciliation conference, there was then a heightened responsibility on the applicant to progress his claim expeditiously, if he intended to prosecute it, once conciliation failed to resolve it.

14      The applicant did not explain his failure to attend the directions hearing on 27 November 2025 at all. The result of having failed to attend the directions hearing is that the Commission was in a position where it could not list the matter for hearing on that date because it was not known how many witnesses the applicant intended to call or the nature of the evidence he would be relying upon. Had the applicant been in attendance, these things would have been explored with him, and a hearing date could likely have been listed at that time. His failure to attend the directions hearing again slowed the progress of the case.

15      The applicant has not adequately explained his failure to comply with the orders of 27 November 2025. His statutory declaration simply says that he was of the understanding that if there was more evidence in light of the evidence already provided, he would file it in compliance with the orders. However, this explanation does not sit easily with the fact that the applicant was provided with clear and comprehensive information concerning the filing of outlines of witness evidence in the form of the Commission’s Practice Note and Fact Sheets. For example, the Evidence Fact Sheet says:

An outline of evidence is a summary of evidence that a witness will give at the hearing. For example, if a party calls three witnesses, there should be three separate documents explaining what evidence each of those witnesses will give. Each outline of evidence should relate to one witness only and should be titled ‘Outline of evidence for [witness name],’ and it should explain what evidence that witness will give in the witness box at the hearing.

…if it is your claim, and you want to give evidence, you should fine an outline of evidence for yourself. This outline of evidence should set out what you will say in the witness box, and it should explain any documents that you ask the Commission to consider. Those documents should then be labelled and attached to the outline of evidence. You should file an outline of evidence for every witness you want to call.

16      Further, while the statutory declaration refers to ‘evidence already provided’, the applicant has not at any stage filed any documents which are apparently his evidence relevant to his unfair dismissal claim or the evidence of any other witness. The only document the applicant has filed is his Form 2 - Unfair Dismissal Application. It is scant. It refers to the chronology leading to his dismissal and broadly alleges that the dismissal was unfair, but it does not articulate either:

(a) his version of the events of 23 July 2025 which relate to the allegations of misconduct which were the reasons for his dismissal; or

(b) why he says the dismissal is harsh, unjust, or unreasonable other than to say that the leading hand swore first and that he did not have a support person present during disciplinary meetings.

17      Prior to the conciliation conference, the applicant emailed to my chambers several images he wanted to refer to at the conciliation conference. These were:

(a) a photograph of two reticulation risers;

(b) A screenshot of an undated text message from a co-worker;

(c) A screenshot of a headline in the Guardian Geraldton;

(d) A photograph of part of what appears to be a rubbish tip;

18      Aside from the photograph in (a), none of the other images appear to have any connection to the events of 23 July 2025.

19      In an email to my chambers of 31 October 2025, ahead of the conciliation conference, the applicant set out his reply to four documents which were attached to the respondent’s Response, and which concerned performance or conduct issues raised with him prior to July 2025. He re-attached the documents from the Response.

20      What this boils down to is that as of 16 January 2026, some five months after the application was filed, the applicant’s case was undeveloped, unarticulated, unadvanced and barely progressed. It is still not clear what applicant’s case is or what issues need to be decided.

21      The applicant has approached his claim as if it is sufficient for him to merely notify the Commission that  he is aggrieved by the decision to terminate his employment in the hope that the Commission might conduct some sort of  inquisitorial process which might uncover some basis for it being overturned.

22      This approach is obviously highly prejudicial to the respondent. It is impossible for the respondent to know the case it has to meet and nothing that has occurred over the last five months has given any glimmer of hope that this position would be remedied or rectified.

23      In short, the applicant’s conduct of this case has given rise to a substantial risk that it is not possible to have a fair trial of the issues in this action.

24      I am required to consider the hardship to the applicant if the action is dismissed. This factor does not outweigh my inclination to dismiss the proceedings for two reasons. First, I am unable to glean anything from the documents and information the applicant has submitted to date that show his claim has any merit. To the contrary, both the application and the applicant’s subsequent correspondence indicates his claim is without merit in the face of the matters put in the Response.

25      Second, the applicant has obtained alternative employment. This has been the reason he has sought to appear remotely at various steps in these proceedings, his reason for seeking to delay the conciliation conference and is also alluded to as part of his reasons for not complying with the 27 November 2025 orders by his reference to having to ‘juggle time to make things work’. 

26      I acknowledge that the applicant was not heard in relation to the respondent’s dismissal application except to the extent that I considered his 16 January 2026 statutory declaration. However, he did have the opportunity to be heard. He was given more than three weeks’ notice of the fact of the show cause hearing, the time of the hearing and the place. He had been granted leave to appear remotely. He had ample opportunity to be heard. Section 27(1)(d) of the IR Act enables the Commission to proceed to hear and determine a matter in the absence of any party who has been duly served with notice of the proceedings. The applicant had the opportunity to be heard but forewent it.

27      I should make it clear that my reason for dismissing the claim does not have to do with the applicant’s non-attendance at the show cause hearing of 29 January 2026. I merely observe that his failure to attend at the allocated time is consistent with the pattern of indifference to his responsibility to prosecute his claim, described in the above paragraphs.

28      The general principles discussed in The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 [103] indicate that it is necessary to stand back and ask ‘…what does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case?’ This does not involve a simple summary of the results of the evaluation of the five factors discussed above, but whether the assessment of those matters produces the result that justice requires: Roddan v Gwilliam and Anor [2005] WASCA 209 [42].

29      The circumstances of this case are that the claim has been on foot for five months, and yet is in a primitive state due to a combination of the applicant’s failure to attend the directions hearing on 27 November 2025, his failure to comply with orders made on 27 November 2025 and his general indifferent approach to the proceedings. As such, the respondent has been prejudiced, and it is not possible for a fair hearing of the matter to occur. Justice therefore requires that the proceedings be dismissed.