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[2001] WAIRComm 2156
procedural. Application to amend particulars of claim granted. Commissioner Smith ordered leave to amend and reserved any application for costs for later determination (Disposition [15]).
Commissioner Smith allowed the applicant (a solicitor) to amend his unfair dismissal particulars to plead alternative dates/bases of dismissal (summary dismissal alleged on 21 September 2000, and alternatively repudiation/constructive dismissal ending 11 October 2000). The Commission held that under s.26 it could allow such an amendment because it clarified the date and basis of the same statutory claim rather than introducing a new cause of action barred by the 28 day limit in s.29(2). In exercising its discretion the Commission balanced prejudice and concluded denying amendment would unfairly prejudice the applicant more than allowing it would prejudice the respondents. Leave to amend was granted; costs to be sought later.
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1,810 words · generated 25/08/2026
Tom Mijatovic was employed by E & S Legal Group as head of its litigation division, commencing around 3 April 2000. A letter from Mr Hare of the firm dated 21 September 2000 (annexed as TM2) included the statement “your employment with this firm is terminated” and directed the applicant to leave the premises immediately, but also contained a paragraph saying the Legal Practice Board and Complaints Committee had intervened and that the parties were to “continue the conduct of the firm's business as before.” The applicant continued working (the application pleads his last working date as 11 October 2000). The applicant filed a referral to the Western Australian Industrial Relations Commission on 19 October 2000 claiming he had been harshly, oppressively or unfairly dismissed, pleading summary dismissal on or about 21 September 2000.
1 cited instrument linked from this judgment.
Subsequently the applicant sought leave to amend his particulars to plead, in the alternative, that the employment either (a) terminated summarily on or about 21 September 2000, or (b) was repudiated/constructively terminated by actions culminating on 11 October 2000. The respondents objected, arguing the alternative pleadings introduced a new cause of action and that any claim not brought within 28 days after termination is statute‑barred by s.29(2) of the Industrial Relations Act 1979. They also argued prejudice because they had already prepared submissions seeking a preliminary hearing limited to the 21 September dismissal issue.
Commissioner J H Smith heard submissions about the legal principles and how discretion should be exercised under s.26 of the Act. The Commissioner found that, properly read, the applicant’s original application could encompass either date and that the proposed amendments did not introduce a new cause of action. The Commissioner balanced the parties’ competing interests and concluded that refusing the amendment would prejudice the applicant more than allowing it would prejudice the respondents, and therefore granted leave to amend (Reasons [4]-[6], [11]-[15]).
Two statutory provisions framed the decision. Section 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 identifies that an employee may refer to the Commission that he has been harshly, oppressively or unfairly dismissed; s.29(2) establishes a 28 day time limit for such a referral after the day employment terminated. Section 26(1)(a) and s.26(2) effectually instruct the Commission to act according to equity and substantial merits and not be restricted by technicalities or the exact wording of the claim; relief is not restricted to the precise claim made (Legal Principles [1]-[4]).
The respondents relied on authorities to the effect that the Commission has no inherent power to extend statutory time limits and that a claim made outside s.29(2) is out of time. Those authorities were acknowledged in the reasons (Respondents' submissions referencing Robe River, Australian Glass Manufacturing, E J Richardson and Theresa Bates). But the Commissioner’s conclusion turned on the construction of the existing pleadings and the proper exercise of the s.26 discretion.
Key elements in the reasoning were:
The original application, though poorly drafted, expressly alleged summary dismissal on about 21 September and also stated the applicant’s last day worked was 11 October 2000. This overlap meant the proposed alternative pleadings were, on balance, clarification of the factual basis for the same statutory claim rather than necessarily a wholly new cause of action (Legal Principles [4]-[5]).
The Commission must balance competing prejudice when exercising its discretion to allow amendments. The Commissioner cited Michael v Ridgeway for the equity/balancing principle (Reason [12]).
The practical consequence that respondents had prepared submissions for a preliminary issue on the 21 September date was a relevant factor; however, denying amendment would likely prejudice the applicant more, given the admitted last working date and the contents of TM2 (Reasons [11]-[15]).
On this basis the Commissioner allowed the amendment, reserving any costs application.
Before this decision, the controlling statutory constraints were uncontroversial: unfair dismissal referrals under s.29(1)(b)(i) must be lodged within 28 days after termination under s.29(2), and the Commission has no free power to extend that statutory time limit (as argued by respondents and supported by cited decisions).
This decision clarifies how the Commission will approach proposed amendments that introduce alternative factual bases or dates for the same statutory claim. Where the proposed amendment can be characterised as clarifying the date/basis of the same claim rather than raising a genuinely new cause of action that is time‑barred, the Commission will consider the amendment permissible under s.26. The Commission will then exercise a discretionary balancing of prejudice, preferring to avoid technical bars that defeat the substantive merits where such an approach is equitable.
This does not change the underlying legal effect of s.29(2) or confer power to extend time beyond 28 days; it is a recognition that pleadings should be construed generously to allow parties to present the substance of the statutory claim, and that s.26 provides a basis for the Commission to permit clarificatory amendments.
Passage (Legal Principles [4]): "After having regard to the requirements of s.26(1) and (2) ... it is open to amend the particulars ... to contend that the Applicant's employment summarily came to an end on or about 21 September 2000, or alternatively came to an end by action constituting a constructive dismissal on 11 October 2000."
Plain English: Because the Act lets the Commission focus on fairness and substance rather than technical pleading, the applicant may amend to say either he was instantly dismissed on 21 September or that the employer’s conduct amounted to a constructive dismissal ending 11 October, both are ways of alleging the same statutory unfair dismissal claim.
Passage (Legal Principles [5]): "It is my view that the application to amend in this case is not to add a new cause of action."
Plain English: The Commissioner concluded the amendment does not create a completely different legal claim; it just explains what the applicant means by claiming he was unfairly dismissed.
Passage (Reasons [12]): "In exercising its discretion to allow an amendment the Commission should have regard to the competing interests of the parties as equity requires that there be a balancing of all of the competing interests."
Plain English: The Commission must weigh how the proposed change harms or helps each side and make a fair choice rather than sticking to strict technical rules.
Passage (Reasons [14]): "A summary dismissal arises where an employer dismisses an employee instantly, that is without warning and without notice of pay in lieu of notice."
Plain English: Summary dismissal means immediate firing without prior warning or payment instead of notice.
Passage (Disposition [15]): "I will make an order granting leave to amend and if either of the Respondents wish to make an application for costs, I will hear and determine the application in due course."
Plain English: The Commission allowed the amendment now; any fight about legal costs will be decided later.
Cases where an applicant pleads unfair dismissal within the statutory time but the factual allegations about the date or mode of termination are ambiguous or could support alternative constructive/repudiatory scenarios.
Situations where an immediate dismissal letter might on its face appear to terminate employment forthwith, but surrounding communications or conduct suggest the employment relationship continued for a time (eg board/committee intervention, instructions to continue working).
Circumstances where respondents have already prepared for a preliminary issue on a particular termination date and therefore claim prejudice, but the applicant can show the amendments merely clarify rather than introduce a new action.
Situations in which rigid refusal to permit clarificatory amendments would deny the claimant a substantive hearing on the unfair dismissal claim, particularly where the pleadings contain internal inconsistencies that can be read in the applicant’s favour.
The present decision itself cites Bailey v Pauga [2000] WAIRC 311 and distinguishes it on the facts: Bailey involved an attempt to introduce a new cause of action outside the s.29(2) period and failed. In Mijatovic the Commission found the proposed amendment did not engraft a new time‑barred cause of action. The judgment also cites authorities submitted by respondents to the effect the Commission has no inherent power to extend statutory time limits (Robe River Iron Associates; Australian Glass Manufacturing; E J Richardson; Theresa Bates). Commissioner Smith accepted those principles but confined the decision to the exercise of statutory discretion under s.26 and to the correct characterisation of the amendment.
This judgment thus sits alongside Bailey as a case about distinguishing between genuine new causes of action (which will be time‑barred) and clarificatory alternative pleadings that remain the same statutory claim. The judgment does not purport to overrule or conflict with the cited authorities limiting the Commission’s power to extend time; instead it applies s.26 to permit an amendment that does not, in substance, create a new, late claim.
Note: the decision itself does not catalogue subsequent appellate treatment; practitioners should check later WAIRC and appellate decisions for any refinement of the approach.
The judgment turns on the factual characterisation of the pleading as clarification rather than a new cause of action. How narrowly or broadly future panels will construe that distinction remains a live question. In close cases, how much factual particularity must an applicant have included originally to be regarded as having preserved an alternative dismissal date?
The decision engages s.26 discretionary relief. What exact facts will be treated as decisive when balancing prejudice? Here the applicant’s admitted last working date and contents of TM2 were significant. Different facts, for example, if the applicant had given an unequivocal concession at conciliation, may produce a different balance.
The role of representations made at confidential conciliation conferences is noted but not exhaustively settled. The judgment accepts such representations are usually without prejudice but treats them as relevant evidence of procedural prejudice. The precise limits of how conciliation statements affect later procedural rights merit clarification in future decisions.
Finally, while the Commission may permit clarificatory amendments under s.26, the boundary between clarification and introduction of a new claim that is time‑barred under s.29(2) is an inherently fact‑sensitive line. Future cases will develop tests or indicators to assist parties and tribunals to determine on which side of that line a particular amendment falls.
Note: This deep dive is grounded in the judgment of Commissioner J H Smith in Tom Mijatovic v Peter Terrence Hare and Evelyn Lilly Tuba trading as E & S Legal Group [2001] WAIRComm 2156. Paragraph references in brackets refer to the numbered paragraphs in the reasons as supplied in that judgment. The above is legal information only, not legal advice. I can make mistakes; before you rely on or act on this, or on any draft, get a qualified Australian lawyer to check it.
PETER TERRENCE HARE AND EVELYN LILLY TUBA T/AS E&S LEGAL GROUP
CITATION NO. 2001 WAIRC 02156
_______________________________________________________________________________
Result Application to amend particulars of claim granted
Respondent Ms K Appleyard of counsel on behalf of Ms Tuba
_______________________________________________________________________________
"1. The Applicant was offered and accepted employment as associate of the Respondent on a fixed two year contract commencing on 3 April 2000, the terms of which are contained within a letter dated 10 March 2000 (Annexure "TM1").
"Your refusal to allow me unrestricted access to the firm's files and your failure to issue accounts as instructed in respect of files of the firm leaves me no alternative but to advise that your employment with this firm is terminated.
I ask that you leave the premises forthwith. You may only take with you those items of personal property. All items of furniture and fittings that are the property of E & S Legal Group are to remain. This includes the computers and reference books under leases paid for by E & S Legal Group. You are entitled to those computer documents created by yourself and I suggest you take copies of these before leaving. All client files remain the property of E & S Legal Group and must remain until such time as those clients otherwise instruct us that they wish you to personally continue with the conduct of their matters.
Your claim yesterday to Josephine Landro, our office manager, that I do not have authority neither to direct you in the conduct of the matters of the firm's clients nor to ask you to leave the premises has caused me concern. I have sought guidance from the Legal Practice Board and Complaints Committee and they have now intervened, stating that they view this matter most seriously. They have advised that both you and I are, for the time being, to continue the conduct of the firm's business as before. A meeting of the Professional Affairs Committee is then to be convened next Thursday, 28 September 2000 at which a settlement of this matter will be determined.
I have been asked to prepare a report of my position in this matter to the Committee and I enclose a copy for your information. I have also been advised with respect to the trust funds held for your mother, R Mijatovic, that she is entitled to request payment to her and that Murie & Edward's claim against the firm is ill-conceived. I have, therefore, authorised the payment of the remaining trust funds to her and enclose a copy of my advice to Murie & Edward."
"1. At all material times the Applicant was a solicitor admitted to practice in the state of Western Australia.
(a) the Applicant would receive a base salary of $55,000.00;
(b) the Applicant would receive an incentive of 30% of paid professional fees and internal disbursements exceeding three times his base salary on all files under his direct conduct or which were directly introduced by him to the firm;
(c) The Contract was for a duration of two years commencing from 3 April 2000;
(d) The duration may be extended or terminated by mutual agreement or by two weeks written notice in circumstances of professional misconduct.
(c) in any way warned that his employment was in jeopardy.
(a) The amendment is substantive and is not one of form.
(b) The Applicant through his conduct has abandoned any claim that he was dismissed by the Respondents on or about 11 October.
(c) The Respondents have incurred considerable costs in preparing submissions for a preliminary argument as to whether a dismissal occurred on 21 September 2000 and that if the amendment is allowed, the preliminary issue falls away.
"A conference was held by Commissioner Smith in respect of this matter. You appeared on behalf of the Applicant, Mr Mijatovic who also attended. Mr Hare appeared on his own behalf and Ms Tuba was represented by Mrs Hartley. Ms Tuba also attended.
You advised Commissioner Smith that the Applicant was summarily dismissed on 21 September 2000 and that thereafter a new contract was entered into whereby following a repudiatory breach by Mr Hare the second contract came to an end on 11 October 2000. You also advised Commissioner Smith that the Applicant's claim that he was harshly, unfairly or oppressively dismissed only applies to the alleged termination that occurred on 21 September 2000.
At the conclusion of the conference the matter was not resolved. Mrs Hartley advised Commissioner Smith that the issue whether the Applicant's employment was terminated on 21 September 2000 should be heard and determined as a preliminary issue.
You advised Commissioner Smith that this application took you and your client by surprise. Accordingly Commissioner Smith directed the parties as follows:
(a) Mrs Hartley, on behalf of Ms Tuba, and Mr Hare are to file written submissions as to why the forementioned issue can and should be dealt with as a preliminary issue.
(b) You are to respond on behalf of the Applicant by close of business 8 December 2000.
Commissioner Smith requested the parties to address the estimated length of a hearing in respect of the proposed preliminary issue and a hearing in respect of all issues, including number of witnesses and unavailable dates for January 2001."
"You will note that the particulars plead the timing and manner of our client's dismissal in the alternative. The alternative pleas are subsequent in time to 21 September 2000.
It is our view that the particulars largely dispose of the contention that there should be a preliminary hearing. Notwithstanding, we would be amenable to the Respondents being provided with an opportunity to present any further submissions prior to the Commissioner making her ruling, provided those submissions were not unduly delayed."
"6. The new claim is properly characterised as a fresh cause of action or claim not previously included in the claim dated 19 October 2000.
"(1) An industrial matter may be referred to the Commission -
(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or
(ii) that he has 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,
"(2) A referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days after the day on which the employee's employment terminated."
Tom Mijatovic
Peter Terrence Hare and Evelyn Lilly Tuba t/as E&SLegal Group [2001] WAIRComm 2156
Application to amend particulars of claim granted. Commissioner Smith ordered leave to amend and reserved any application for costs for later determination (Disposition [15]).