2026 WAIRC 00968

INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00968



CORAM
:
INDUSTRIAL MAGISTRATE B. COLEMAN



HEARD
:
WEDNESDAY, 21 OCTOBER 2026



DELIVERED
:
THURSDAY, 5 NOVEMBER 2026



FILE NO.
:
M 108 OF 2026



BETWEEN
:
LAURA-KAY SHIELDS


CLAIMANT





AND





MARY WHITELAW MURPHY AS TRUSTEE FOR THE WILSON TRUST


RESPONDENT

CatchWords : INDUSTRIAL LAW – Enforcing section 23A orders - assessment of appropriate civil penalties for contrevention - unpaid judgment sum for unfair dismissal – cautions vs. pecuniary penalties – considerations related to self-represented litigants – penalty determined
Legislation : Industrial Relations Act 1979 (WA)
Case(s) referred
to in reasons: : Trade Practices Commission v CSR Limited [1990] FCA 762
Callan v Smith [2021] WAIRC 216
Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 867
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Result : Penalty issued
Representation:
Claimant : In person
Respondent : No appearance


REASONS FOR DECISION
1 Laura-Kay Shields (the claimant) was the successful applicant in an unfair dismissal application filed with the Western Australian Industrial Relations Commission (the Commission) on 2 October 2023.
2 On 14 April 2026, Commissioner Walkington (the Commissioner) ordered that the respondent Mary Whitelaw Murphy as Trustee for the Wilson Trust (the respondent) pay $21,971.19 gross as compensation for loss, along with $3,000 as compensation for injury. The total amount awarded in favour of the claimant was $24,971, to be paid within seven days of the order.
3 On 5 May 2026, the respondent filed an application to appeal. A stay application was lodged on 7 May 2026, which was dismissed on 12 June 2026.
4 The claimant then lodged a claim with the Industrial Magistrates Court of Western Australia (the Court) on 23 July 2026, seeking that the respondent:
a) pay the judgment amount of $24,971.19;
b) pay pre-judgment interest; and
c) pay a penalty.
5 On 13 August 2026, the Full Bench of the Commission dismissed the respondent’s appeal against the decision of the Commissioner.
6 On 26 August 2026, the respondent lodged a response, consenting (in essence) to the Court making an order that the judgment amount be paid but denying that interest and penalties should be awarded.
7 On 27 August 2026, Industrial Magistrate Scaddan (IM Scaddan) made an order that the respondent pay the sum of $24,971.19 to the claimant within seven days. The balance of the claim was adjourned for a hearing.
8 The parties were required to lodge evidence by way of witness statements pursuant to the usual orders of the Court.
9 The claimant lodged and served her witness statement within the required timeframe.
10 The respondent did not lodge or serve any witness statements, however, the Court received a Form 29 - Multipurpose Form from the respondent on 16 October 2026, outlining four brief paragraphs of submissions and attaching three documents.
11 The first attachment was a copy of the written submission of the claimant filed with the Commission on 8 June 2026 in opposition to the stay application. The second and third attachments are described as 'documents' that apparently reveal the incorrect use of names and addresses by the claimant and do not appear to be relevant to the payment of a penalty, save for the assertion by the respondent that the claimant used an incorrect address on her legal documents up until the hearing of the stay application.
12 The hearing was listed on 21 October 2026 at 9.30am. The claimant attended and provided oral submissions in support of her claim. There was no appearance by the respondent.
13 In oral submissions at the hearing, the claimant abandoned her claim for pre-judgment interest and confirmed that she only seeks a penalty be paid. Therefore, the only issue to be decided is whether the Court should impose a penalty for non-compliance, and if so, the amount of such penalty.
14 Neither party is legally represented. From the time that the original unfair dismissal application was filed, they have had to navigate the Western Australian industrial relations regime, encompassing two jurisdictions. The claimant may in the future undertake a further process of filing an application in the civil jurisdiction of the Magistrates Court of Western Australia to recover the judgment debt.
15 It is regrettable that the claimant is required to undertake three separate applications in three separate jurisdictions in order to recover the amount owed to her, however, that is the nature of the current legislative and regulatory regime in Western Australia.
Should a penalty be paid?
16 Where an employer has failed to comply with an order made under s 23A of the Industrial Relations Act 1979 (WA) (the Act), the employee may apply for an enforcement order of the order pursuant to s 83B(1) of the Act. In addition, the Court has the power to issue a caution or to order that the respondent pay a penalty pursuant to s 83B(5)(a) of the Act. The maximum amount of the penalty is $13,000.
17 The primary purpose of imposing a penalty is to ensure compliance with the statutory regime. French J in Trade Practices Commission v CSR Limited [1990] FCA 762, cited with approval in Callan v Smith [2021] WAIRC 216 at [30].

18 In the decision of Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 867, Industrial Magistrate Kucera evaluated the role of cautions and acknowledged the recent legislative amendments to pecuniary penalties in the Act.
19 He concluded that cautions are included as an alternative to a pecuniary penalty and noted that had Parliament concluded there was no role for cautions in securing compliance with the legislation, then the option to impose a caution would have been removed from s 83. Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2023] WAIRC 867 at [23].
His view is entirely correct.
20 In determining whether to impose a penalty, careful consideration needs to be given to the facts of each case to decide whether the conduct calls for the imposition of a penalty, and if so, the amount to be imposed. Callan v Smith [2021] WAIRC 216 at [90].

21 Through the appellate Courts, a non-exhaustive range of considerations has been developed, to which regard may be had in determining whether conduct calls for the imposition of a penalty and, if it does, the amount of that penalty. Callan v Smith [2021] WAIRC 216 at [90] citing the Federal decisions of Kelly v Fitzpatrick [2007] FCA 1080 and Mason v Harrington Corporation Pty Ltd [2007] FMCA 7.

22 The considerations include:
a) the nature and extent of the conduct which led to the breaches;
b) the circumstances in which the conduct took place;
c) the nature and extent of any loss or damage sustained due the breaches;
d) whether there had been any similar previous conduct by the respondents;
e) whether the breaches were distinct or arose out of the one course of conduct;
f) the size of the business enterprise involved;
g) whether or not the breaches were deliberate;
h) whether senior management was involved in the breaches;
i) whether the party committing the breach had exhibited contrition;
j) whether the party committing the breach had taken corrective action;
k) whether the party committing the breach had cooperated with the enforcement authorities;
l) the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
m) the need for specific and general deterrence.
23 Where the parties are not legally represented and there is little to no evidence before the Court, such considerations can be difficult to discern. Care must be taken not to penalise a party because they may not be familiar with evidentiary and procedural requirements.
24 A judicial officer has a positive obligation to provide structural advice and assistance to an unrepresented person, to reduce the disadvantage they may suffer as a result of being untrained legally: this is often referred to as procedural fairness. However, there is a marked difference between providing an explanation regarding Court processes and the provision of legal advice: care must be taken not to stray into the realm of the latter.
25 Judicial officers are also required to maintain impartiality and care must be taken to ensure that the parties remain on a fair and equal footing. Procedural flexibility must not become unfair leniency: the parties are entitled to an independent impartial judiciary and a fair hearing.
26 Both parties were given equal time to obtain legal advice and to provide evidence to the Court, either in support of, or in opposition to, the claim for a penalty.
27 The claimant submits that the respondent has always delayed the process, from the commencement of the original application filed in the Commission, and thereafter. She submits that the respondent has deliberately delayed payment of the outstanding judgment sum.
28 The claimant lodged a witness statement which outlined the protracted proceedings in the Commission, along with her attempts to recover the amount owed to her, both prior to and after this claim was commenced.
29 In fairness to the parties, I consider that the only relevant consideration in respect of delay regarding the history of the matter is to consider the conduct of the respondent after the date of the decision by the Commissioner on 14 April 2026.
30 Any delay or conduct by the respondent in relation to the unfair dismissal application was conduct that the Commissioner would have had regard to when determining the amount of the application and compensation.
31 There is evidence before the Court which can relied upon to determine that the respondent has failed to respond directly to the messages and demands for payment of the outstanding amount since the decision of the Commissioner in April 2026.
32 The lack of correspondence from the respondent needs to be considered in light of the fact that an appeal against the decision had been filed.
33 The written submissions of the respondent refer to the fact that the respondent was reluctant to pay any sum to the claimant prior to the appeal decision because the respondent was worried she would not be able to recover the sum paid if the appeal was successful.
34 With respect, that argument is not a valid basis for the refusal to pay the sum, particularly since the stay application was dismissed on 12 June 2026.
35 Further, by the time the appeal was dismissed on 13 August 2026, the respondent was placed on notice that the entire judgment sum had to be paid.
36 The claimant has made the following efforts to recover the sum owed:
a) A text was sent to the respondent providing the claimant's bank account details on 18 April 2026.
b) A formal letter of demand was emailed to the respondent on 12 June 2026.
c) The respondent was served the current claim on 31 July 2026, formally notifying her that the claimant intended to seek formal orders due to non-compliance.
d) A further letter of demand was emailed on 16 August 2026.
e) A third letter of demand along with a copy of the formal order made by IM Scaddan was emailed on 2 September 2026.
f) A text and screenshot of the formal order was sent to the respondent on the same date.
g) A fourth letter of demand was sent to the respondent on 7 September 2026.
h) A fifth letter of demand was sent to the respondent on 13 September 2026 for the remaining outstanding amount after $1,000 had been deposited into the claimant's bank account.
i) A sixth letter of demand was sent to the respondent on 21 September 2026 after a further $1,000 had been deposited into the claimant's bank account: in this letter, the claimant notified the respondent that she would not accept payment of the sum by way of instalments.
j) A final letter of demand was sent to the respondent on 28 September 2026.
37 To date, the respondent has paid a total of $2,000, by transferring to the claimant (via electronic funds transfer) an amount of $1,000 on 8 September 2026 and a further amount of $1,000 on 21 September 2026. No correspondence was sent to the claimant about these payments, and she only discovered them when reviewing her bank account.
38 The brief written submissions received by the Court on 16 October 2026 indicate that the respondent operates a small business with financial challenges and that the respondent does not have access to the funds required to meet the balance of the judgment sum.
39 The submissions also assert that the claimant is aware that the small business is facing these financial difficulties. No evidence has been lodged in support of these submissions.
40 At the hearing on 21 October 2026, the claimant disputed that the respondent cannot pay the sum owed. The claimant highlighted the fact that the respondent had previously informed the registry that she was going to be unavailable for a hearing in the Commission because she would be away on an international trip to Japan.
41 In her written statement lodged on 2 October 2026, the claimant noted that the respondent operates three profitable businesses, being Sessions of Craigie, Wisteria Café in Edgewater and an internal catering service.
42 In the absence of any evidence from the respondent, it appears from the evidence submitted by the claimant that she is in a far more precarious financial position than the respondent: the claimant continues to suffer ongoing financial problems, along with recurring stress and anxiety due to the protracted nature of the legal proceedings.
43 By reference to the non-exhaustive considerations, it is clear from the evidence that extensive attempts have been made by the claimant to recover the amount owed to her. She has not been afforded the courtesy of a response, other than by brief submissions made to the Court after the lodgment of this claim.
44 There have been two payments of $1,000, but each of those payments occurred in September 2026, approximately five months after the judgment in the Commission and approximately six weeks after this claim was commenced. It cannot be said that the respondent has made meaningful attempts to comply or to correspond with the claimant regarding the financial position of the trust.
45 Ten attempts were made by the claimant to recover the money owed to her, eight of which occurred after the stay application was dismissed in June 2026. Not once did the respondent reply: this tends to demonstrate a lack of contrition.
46 The issue of a caution can sometimes be a sufficient alternative to a pecuniary penalty in circumstances where there is a misunderstanding by a self-represented respondent of their legal obligations. However, this must be balanced against the need to ensure compliance with the regime. Specific and general deterrence are important considerations. The question is whether a caution is an appropriate deterrent in the particular circumstances of this case.
47 Given the lack of correspondence from the respondent, despite repeated attempts by the claimant to recover the sum owed, particularly after the stay application was refused, a caution is not an appropriate deterrent.
48 There is a difference between a misunderstanding of legal obligations and intentional avoidance. Certainly, since the refusal of the stay, the respondent has known that the judgment sum is required to be paid. She then delayed a further three months before paying two nominal amounts to the claimant and due to her lack of correspondence, the claimant was required to commence a further claim in this Court. No payments were made prior to the lodgment of this claim.
49 There is no evidence before the Court that confirms the respondent cannot pay the balance of the judgment sum. Her lack of engagement and continued refusal to confront the issue of non-compliance requires the payment of a pecuniary penalty to ensure specific and general deterrence: self-represented litigants must understand there is no automatic exemption from responsibility.
50 It is for these reasons that a penalty is the appropriate outcome.
51 The respondent is ordered to pay to the claimant:
a) a penalty in the amount of $1,300; and
b) the filing costs of the claim in the amount of $45.


B. COLEMAN
INDUSTRIAL MAGISTRATE