Commission rejects unfair dismissal application over applicant's failure to prosecute their claim

The Western Australian Industrial Relations Commission (WAIRC) has dismissed an unfair dismissal application after the applicant failed to take the necessary steps to prosecute their claim. The commission contended that it has the power to dismiss any matter at any stage of the proceedings if satisfied by the requirements in s 27 (1) (a) of the Industrial Relations (IR) Act.

“The Commission found that the applicant had not taken any, or the appropriate, steps to prosecute their claim and that they did not intend to prosecute their claim,” WAIRC said in a news release.

Background of the unfair dismissal application

The applicant filed an application to s 29(1)(c) of the IR Act and the WAIRC understood that the matter was resolved at a conciliation conference in May.

The commission further reported that a Form 1A, or the Notice of Discontinuance, was also sent to the applicant.

“The applicant did not file the Notice of Discontinuance, and did not respond to two further emails,” WAIRC said. “The applicant was contacted by telephone on 21 June 2022, and she indicated that she was unwell, had not completed the form, and requested another one, which was sent.” 

On 29 June, WAIRC communicated with the parties and said that the form had not been filed. The commission also attached a Notice of Hearing listing the matter for directions.

However, the applicant did not appear at the directions hearing, nor did they respond to any calls that day.

Hence, the commission ordered a further hearing be listed so that the applicant could show cause why the application should not be rejected.

“The applicant was sent a copy of the orders with a Notice of Hearing, and on 14 July the directions hearing transcript,” WAIC said. “She apologised for the delay and asked for a copy of the form to close the matter, which was sent on the same day.”

Still, on 22 July, the commission informed the applicant that the form had not been filed and that the show cause hearing was listed for 26 July.

“The applicant did not communicate further, file the form, or appear at the hearing on 26 July 2022,” the commission said.

Findings of the WAIRC

The commission said that it took every appropriate measure to reach out to the applicant, but to no avail. Hence, it ordered the dismissal of the unfair dismissal application.

“The Commission found that the applicant had no intention of continuing, progressing or prosecuting their claim,” WAIRC said. “The Commission noted the applicant’s general lack of any engagement with the Commission and their statement in their last email concerning having the matter closed.”

Based on the s27 (1) (1) of the IR Act, the commission has the prerogative to dismiss a matter at any stage of the proceedings and can refrain from further hearing or determining the matter, or part of it, if it fulfilled the following:

• that the matter or part is trivial
• that further proceedings are not necessary or desirable in the public interest; or
• that the person who referred the matter to the commission does not have a sufficient interest in the matter
• that for any other reason, the matter or part should be dismissed or the hearing of it discontinued, as the case may be

According to the commission, if the applicant really wanted to pursue the unfair dismissal application, they could have done it with utmost diligence or promptness.

“The Commission noted that as a result, both the respondent and the Commission had incurred unnecessary expense in attempting to resolve the matter, that the situation was prejudicial to the respondent, and against the public interest,” WAIRC said.

It reiterated that what matters most before the commission are the interests of both parties and the public, thus the need for the case to be resolved as efficiently as the justice of it requires.