Farrugia v Dyson's Bus Services Pty Ltd [1996] IRCA 463

DECISION NO: 463/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1315 of 1996 B E T W E E N: Frank FARRUGIA Applicant A N D DYSON'S BUS SERVICES PTY LTD Respondent REASONS FOR DECISION 26 September 1996 PARKINSON JR This is an application made pursuant to Section 170EA of the Industrial Relations Act 1988. ("the Act") The applicant was employed by the respondent as a bus driver. He was employed in this capacity for over 11 years, initially by another route operator and then by the respondent as successor or assignee of the business of the former employer. The applicant's employment was terminated by the respondent on Friday 16 February, 1996 in circumstances where the applicant had allegedly damaged a tyre of one of the respondent's vehicles. It was alleged that he had continued to drive the vehicle to the depot after becoming aware that it had a flat tyre and had thus stripped the tyre and damaged the tyre rim. The respondent contends that there was a settlement in relation to the termination of the employment and consequently the application ought be dismissed. It alleges the settlement arose out of discussions between officials of the Transport Workers Union of Australia and the respondent on Monday 19 February 1996. As a result of those discussions, the respondent agreed to pay to the applicant an amount of 11 weeks pay in settlement of the matter, together with provision of a written reference and payment of all accrued entitlements. The amount of 11 weeks pay together with all other outstanding entitlements were in fact paid to the applicant in person on Tuesday, 20 February, 1996. The applicant contends that there was never an agreement by him to the terms of the settlement reached between the union and the respondent and contends that any such settlement was made without authority or contrary to the authority he had given. Further he contends that he was never informed that it was a term of any settlement reached that he was precluded from bringing an application in respect of unlawful termination of employment. There are two aspects to this argument. The first is whether there was a settlement and whether such settlement contained a term either express or implied, that the applicant would forego any right to take legal proceedings in respect of the alleged unlawful termination of his employment, and the second is whether the applicant was ever a party to any such settlement or agreement, either individually or by way of the action of an agent. In the proceedings the respondent referred to a document which it had created, in which it said the terms agreed at the meeting on 19 February, 1996 were confirmed in writing. That document (Exhibit R5) was created by the respondent's manager, Mr Shane Dyson, some time after the termination of the applicant's employment and forwarded to the union some time after that date. The applicant had not prior to these proceedings seen the document, nor had he been invited to agree to its terms. Counsel for the respondent relies upon the document as being evidence of the terms of the agreement between the parties, rather than as being an agreement in writing as to settlement. The document purports to reflect the terms of a settlement between the parties. The document has to it some aspects which are clearly inaccurate.