WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ANTHONY ALBERT BISHOP, APPLICANT v. PIXEN PTY LTD T/AS MEGABUS, RESPONDENT CORAM COMMISSIONER P E SCOTT DATE TUESDAY, 11 JUNE 2002 FILE NO. APPLICATION 1959 OF 2001 CITATION NO. 2002 WAIRC 05712 _________________________________________________________________________________________________________ Result Finding re Scope of claim Representation Applicant Mr K Trainer Respondent Mr B Walker _________________________________________________________________________________________________________ Reasons for Decision 1 This is an application made by an employee referred to in s.29(1)(b) of the Industrial Relations Act 1979. 2 By s.29(1)(b), an employee may refer to the Commission a claim that— “(i) He has been harshly, oppressively or unfairly dismissed from his employment; or (ii) He has been not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of service.” 3 The parties are in dispute as to whether the application before the Commission in this matter includes a claim of harsh, oppressive or unfair dismissal pursuant to s.29(1)(b)(i) or is a claim only in respect of denied contractual benefits pursuant to s.29(1)(b)(ii). 4 The application in this matter was filed on 5 November 2001 in the prescribed form, being Form 1 – Notice of Application, and attached is the Particulars of Claim in the proforma used by the Commission. The lack of information contained in question 5 of the Particulars of Claim dealing with the name and address of the applicant’s authorised representative, indicates that at the time of completing the Form 1 and Particulars of Claim the applicant was unrepresented. However, the applicant was represented in making submissions to the Commission on this matter. 5 The Form 1 filed by the applicant is the standard form completed in respect of claims pursuant to s.29(1)(b) and it provides the following— “The grounds on which the application is made are: (a) harsh, oppressive or unfair dismissal, and/or (b) outstanding benefits (non-award entitlements).” 6 The Form 1 filed by the applicant contains no markings to indicate whether the claim relates to (a) and/or (b). 7 The Particulars of Claim proforma contains a number of sections, the first of which sets out the details of the applicant, the employer, the occupation of the applicant and particulars of the employment such as start and finish dates, rates of pay and the nature of the instrument of employment. The second part of the Particulars of Claim is clearly related to claims pursuant to s.29(1)(b)(i), in that it contains questions relating to claims of harsh, oppressive or unfair dismissal which commence at the top of page 3 at question 20, and continue up to and including question 23. Immediately before question 20, at the top of page 3, there is a note in bold which says— “NOTE: Claims of unfair dismissal cannot be accepted if more than 28 days have elapsed since the termination of employment.” 8 In the margin, typed perpendicular to the remainder of the page and in bold, is the following— “Claim of harsh, oppressive or unfair dismissal (if no claim go to question 24)” 9 In this case, the Particulars of Claim form is blank in respect of all of the questions 20 – 23. 10 Page 4 of the Particulars of Claim form includes at the top half of the page an explanatory note followed by a question. It states— “Contractual benefits are benefits that were arranged between you and your former employer under a contract of employment, providing that benefits were not provided by an industrial award, agreement, workplace agreement or due under the Minimum Conditions of Employment Act. What sum/s of money are you claiming you are due under the contract of employment and what is each for?” 11 This question is answered in detail in this application in the following manner— $ FOR 292.38 ANNUAL LEAVE LOADING PAID FOR TWO WEEKS LEAVE PRIOR TO FINISHING THEN DEDUCTED FROM TERMINATION PAYOUT 865.38 EXTRA WEEKS NOTICE ENTITLEMENT FOR OVER 45 WITH 2 YEARS CONTINUOUS SERVICE 1,730.76 TWO WEEKS NOTICE FOR DENIAL OF THE ABILITY TO WORK OUT MY TERMINATION NOTICE TWO DAYS PRIOR TO TAKING TWO WEEK (sic) ANNUAL LEAVE 1248 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 12 Perpendicular to the page, in the margin and in that section of the page dealing with question 24 is typed, in bold, the following— “Claim that due contractual benefits have been denied (if no claim go to next section)” 13 The question to be answered at this point is whether the application before the Commission includes a claim of harsh, oppressive or unfair dismissal pursuant to s.29(1)(b)(i). The parties have made written submissions on that question, and those submissions are noted. It is true that the applicant in completing the Form 1 has not identified the nature of the claim by any particular marking of the Form, in that he has not circled nor struck out nor in any other way indicated the nature of the claim he wishes to pursue. The Form 1, therefore, does not demonstrate whether the grounds on which the application was made relate to either or both of a claim of harsh, oppressive or unfair dismissal, and denied contractual benefits. As the Form 1 specifies “and/or”, one might assume that the applicant would indicate the nature of the grounds by striking through one or the other or circling one or the other of the options provided. In this case, the lack of such indication leaves the nature of the claim unclear. 14 However, clarity can be sought by reference to the Particulars of Claim. The Particulars of Claim must have some standing where the applicant failed to clarify in the Form 1 the nature of his claim. Whilst it is appreciated that the applicant may have been unrepresented at the time of completing the Form 1 and the Particulars of Claim, the form itself and the Particulars of Claim are not so complex or uncertain in their structure to cause such confusion that one could not ascertain on their face which sections of them would be expected to be completed if one were claiming harsh, oppressive or unfair dismissal and which were to be completed if the claim related to denied contractual benefits. 15 In this case, I am satisfied that the Commission ought have recourse to the Particulars of Claim to give some clarity to the Form 1. The Particulars of Claim give no indication that the applicant alleges that his dismissal was harsh, oppressive or unfair. That section of the Particulars of Claim has been left blank. Bearing in mind the notation at the top of page 3, and the direction in the margin “if no claim go to question 24”, it is clear that the applicant did not by this application allege harsh, oppressive or unfair dismissal. By not answering any questions in this section, he has demonstrated that there was no claim in respect of harsh, oppressive or unfair dismissal. 16 On the other hand he has completed in clear, neat handwriting, a claim of denied contractual benefits, identifying the sum of money said to be denied, and the basis of each amount claimed. 17 On the basis of the application completed and filed and now before the Commission, and having taken account of the parties’ submissions, I find that the nature of the claim is for denied contractual benefits pursuant to s.29(1)(b)(ii) and does not raise a claim of harsh, oppressive or unfair dismissal pursuant to s.29(1)(b)(i). 18 Two other issues have been raised which warrant comment. They are the terms contained on the Notice of Hearing and the conduct of the parties. Neither of these can be used in determining the nature of the claim filed by the applicant. The Notice of Hearing is of no assistance as it was prepared by the Commission without this particular issue having been formally raised for consideration. The Commission in preparing its notices has made an assumption based upon its perusal of the application and this of itself does not constitute any concluded view of the application. As to the question of the conduct of the parties, the Notice of Answer and Counter Proposal is of no assistance as it is a document prepared by the respondent to answer the application. It is the application itself which is to be the source for determining what the applicant claims before the Commission. 19 I conclude from the manner in which the applicant has completed the Form 1 and the Particulars of his claim that his claim is in accordance with s.29(1)(b)(ii) only. _________ 2002 WAIRC 05755