WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JACQUELINE CAROL HOLM, APPLICANT v. SHIRE OF GIN GIN, RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 16 OCTOBER 2002 FILE NO/S. APPLICATION 834 OF 2002 CITATION NO. 2002 WAIRC 06885 _________________________________________________________________________________________________________ Result Application dismissed Representation Applicant Mr R Clohessy as agent Respondent Mr M Richardson as agent _________________________________________________________________________________________________________ Reasons for Decision (Extempore) 1 Presently before the Commission is an application pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (“the Act”), which application seeks the dismissal of the substantive proceedings in this matter. The substantive application is an application by Jacqueline Carol Holm against the Shire of Gin Gin that she was harshly, oppressively and unfairly dismissed from her employment as a principal planner on or about 30 April 2001. 2 The present application was filed on 13 September 2002. The grounds in support of the application for dismissal pursuant to s 27(1)(a) of the Act are, in short, that there are currently on foot concurrent proceedings in the Australian Industrial Relations Commission (“the AIRC”) by which the applicant alleges that her dismissal was harsh, unjust or unreasonable. There is no suggestion in submissions before the Commission in this application, that any alternative relief is being sought in the federal proceedings, and indeed, there was no alternative relief being sought in the substantive application in this jurisdiction. 3 Both applications were apparently commenced on or about 16 May 2002. There was some suggestion in submissions that the application in the AIRC was filed some time shortly prior to the application in this jurisdiction, but on the same day. 4 The Commission was informed by the industrial agents representing the parties that the proceedings in the AIRC have progressed beyond the conciliation stage and the Commission was informed that there are proceedings to take place before a member of the AIRC at some point in the near future, it seems, as to jurisdiction. 5 In relation to that matter, the point of jurisdiction taken in the proceedings in the AIRC as the Commission was informed, relates to whether or not the applicant was dismissed. I note from the notice of answer and counter proposal and it is common ground, indeed, in these proceedings, that the very same issue is taken in relation to the Commission’s jurisdiction to entertain the present substantive application, that is, whether the applicant was dismissed to enliven the jurisdiction of this Commission. That is, it appears to the Commission that the issue to be determined is the same in these proceedings and in the proceedings in the AIRC. 6 I turn to the relevant principles in relation to applications such as these. The Full Bench of this Commission in the matter of Fitzpatrick v Baulderstone Clough Joint Venture (1999) 79 WAIG 2310 dealt with an appeal from a member of this Commission who dismissed an application pursuant to s 27(1)(a) of the Act in circumstances not dissimilar to those before me in this application. Perhaps the distinguishing point to be drawn, however, is that in the proceedings in issue before the Full Bench it was a matter of record that there was no jurisdictional point taken in proceedings before the AIRC. 3020 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 7 In that matter both sets of proceedings, both in this Commission, and in the AIRC, involved an unfair dismissal application and the same relief was sought as is the case in these proceedings. The Full Bench dismissed the appeal. The Full Bench, including as a member the Commission as presently constituted, took the view that the Commissioner at first instance did not err in the exercise of his discretion to dismiss the matter before him at that time. 8 I adhere to the views that I expressed in that matter at 2312 in relation to the application of the relevant principles for the purposes of these proceedings. 9 In the instant case, whilst a point of jurisdiction has been raised in the application in the AIRC, it is the same question that is being raised in these proceedings, that is, whether the applicant was dismissed or whether the employment contract came to an end by effluxion of time. In other words, the proceedings before this Commission and the proceedings before the AIRC are identical in character in that they arise out of the same set of facts, the same circumstances, and indeed, the same question has been raised before both tribunals. 10 Whilst the industrial agent for the applicant referred the Commission to s 29AA of the Act as it now is, introduced by the Labour Relations Reform Act 2002, without expressing any concluded view on the application of that particular provision, the applicant would need to persuade the Commission that s 29AA is retrospective in operation. In my view, even if it could be said that s 29AA is retrospective, in particular, subsection (2), that subsection appears to be directed to matters other than those presently before the Commission and I do not read that provision as precluding the application of the principles to which I have referred, in particular as established by the Full Bench in Fitzpatrick. 11 I do note also that the industrial agent for the applicant raised the prospect in submissions before the Commission of the withdrawal of the present substantive application on the basis that the respondent not oppose any attempt to reinstate the applicant’s claim at a later date. Such an undertaking was not forthcoming from the agent for the respondent and that therefore being the case the applicant did not pursue that matter. 12 I should also note that the applicant sought to adjourn these proceedings in view of those before the AIRC. 13 In my opinion, the principles dealt with in Fitzpatrick by the Full Bench apply with equal force to these proceedings. There is no jurisdictional point taken in the federal proceedings that is peculiar to the federal legislation. I am not persuaded that having regard to those principles, and ss 26(1)(a) and (c) of the Act, that the Commission should not exercise its powers pursuant to section 27(1)(a) to dismiss the application. 14 In my view such an order should issue and therefore the substantive application is dismissed pursuant to s 27(1)(a) of the Act. _________ 2002 WAIRC 06890