WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SUSAN MAGDALENA ALMEIDA, APPELLANT v. COMMISSIONER, MAIN ROADS WESTERN AUSTRALIA, RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER P E SCOTT – CHAIRMAN MS D ROBERTSON – BOARD MEMBER MR E DUTTON – BOARD MEMBER DATE MONDAY, 14 APRIL 2003 FILE NO. PSAB 11 OF 2002 CITATION NO. 2003 WAIRC 08133 _________________________________________________________________________________________________________ Result Appeal dismissed _________________________________________________________________________________________________________ 1282 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Reasons for Decision 1 These are the unanimous reasons of the Public Service Appeal Board (“the Board”). This is an appeal to the Board lodged on 26 July 2002. The Form 10 – Notice of Appeal to Public Service Appeal Board filed by the appellant says that she “appeals under s.80(l)” of the Industrial Relations Act, 1979 (“the Act”) against the decision of the Commissioner of Main Roads Western Australia to dismiss her. She says in the Form 10 that the decision against which she appeals was made on 26 July 2002. We note, however, that the schedule attached to the Notice of Appeal sets out, under the heading of Grounds of Appeal, that “the appellant claims that in relation to the decision to dismiss Ms Almeida from her employment as from 9th July 2002 …”. 2 As of 11 March 2003, the appellant had not sought to prosecute the appeal. In light of the appellant’s apparent inactivity in respect of the appeal and concerns on the part of the Board as to the date of the decision appealed against and whether the appeal was made within the time specified within the Act, the Board directed that a letter be sent to the appellant. Accordingly, a letter in the following terms, formal parts omitted, was sent to the appellant on 11 March 2003— “I am directed by the Public Service Appeal Board to write to you in respect of this matter. Prior to these matters proceeding further, the Public Service Appeal Board hereby directs that you respond in writing to each of the following issues— 1. The Form 10 - Notice of Appeal which you filed indicates that the appeal is against a decision of the employer made on 26 July 2002, yet the schedule to the Form 10 says that the decision was effective on the 9th July 2002. In accordance with the Industrial Relations Commission Regulations 1985, Regulation 45, twenty one days from the date of the “decision, determination or recommendation appealed against” is allowed for the filing of such appeal. You are hereby directed to advise the Public Service Appeal Board of— a) the date of the employer’s decision; and b) as the appeal was filed in the Commission on the 26th July 2002, whether the appeal is within time. 2. Since the appeal was filed on 26 July 2002, you appear to have taken no action to prosecute the appeal. The Commission has noted that it is not in the public interest that a matter not be dealt with expeditiously, (see Pietracatella v WA Italian Club Inc (FB) (81 WAIG 2532)) and that there is an obligation on appellants to diligently pursue their applications. Further, the time limit contained within Regulation 45 of the Industrial Relations Commission Regulations 1985, being 21 days from the date of the decision, determination or recommendation, for the filing of an appeal, indicates that there is a onus on you as the appellant to have pursued the appeal expeditiously and diligently. You are directed to advise the Public Service Appeal Board in detail as to why you have not pursued the appeal with any apparent diligence since it was filed. 3. In responding to this issue, you are referred to The Australian Workers Union, Western Australian Branch, Industrial Union of Workers v Barminco Pty Ltd – Plutonic Project (FB) (80 WAIG 3162) which sets out the tests to be applied in respect of the power of a court to dismiss an action for want of prosecution. Those tests are— (a) Whether the length of the delay was serious; (b) Where in a jurisdiction such as this the emphasis is on swift remedies, the period of delay was ipso facto, inordinate and irrecoverable; (c) Whether the appellant would suffer hardship if deprived of an opportunity to seek correction of the matter appealed against by granting the application; and (d) Whether there would be prejudice to the parties respectively of the matter either proceeding or not proceeding and the explanation for the delay. You should address those tests in your response. You are also invited to make any further submissions to the Public Service Appeal Board which you consider relevant as to the issue of whether this matter should be allowed to proceed in light of the delay. At this point, the Public Service Appeal Board is not concerned so much as to the merits of the appeal as such, but as to the issue of the delay in the matter being pursued. You are hereby directed to respond to these issues in writing by no later than 4.00pm, Tuesday 25 March 2003. You should be aware that should you fail to adequately respond to these issue by 4.00pm, Tuesday 25 March 2003, this may result in the Public Service Appeal Board dismissing the appeal. Should you have any queries about this matter please telephone me on 9420 4484. Yours faithfully” 3 As at 4.00pm on Tuesday, 25 March 2003, the appellant had not responded to the letter of 11 March 2003. Accordingly, the Board needs to consider whether the appeal ought proceed or what action be taken in respect of it. 4 We note that under other sections of the Act, a period of 28 days is allowed for employees to challenge a decision of their employer to dismiss them (see s.29(1)(b)(i)) and, an appeal to the Board is to be commenced within 21 days of the decision of an employer (see Regulation 45(2) of the Industrial Relations Commission Regulations 1985). These time frames indicate at least in part that the Commission takes the view that these matters should be dealt with expeditiously (see Pietracatella v WA Italian Club Inc (FB) (81 WAIG 2532)) and that appellants have an obligation to diligently pursue their applications. 5 In this case, after a period of 8 months from the date of filing of the appeal, the appellant has not sought to prosecute the appeal. The appellant has not responded to the Board’s questions aimed at ascertaining why she has not proceeded. There is no indication from the appellant that she would suffer any hardship if deprived of the opportunity to pursue her appeal, and there is no explanation as to what prejudice if any she might suffer by not being able to proceed. 6 In these circumstances, the Board having indicated to the appellant that should she fail to adequately respond to this and other issues by 25 March 2003, and she not having responded at all, we conclude that it is appropriate to order that the appeal be dismissed. _________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1283 2003 WAIRC 08140 AGAINST THE DECISION TO DISMISS MADE ON 26/7/2002