Roseman -v- United Bonded Fabrics Pty Ltd [1999] NSWADT 129

Set aside by Appeal : Set aside by appeal on 26/7/2000. Remitted back to Tribunal

CITATION: Roseman -v- United Bonded Fabrics Pty Ltd [1999] NSWADT 129

DIVISION: Equal Opportunity

APPLICANT: Gregory Roseman

RESPONDENT: United Bonded Fabrics Pty Ltd

FILE NUMBER: 991043

HEARING DATES: 05/26/1999; 09/22/1999; 11/17/1999; 12/02/1999

SUBMISSIONS CLOSED: 12/02/1999

DATE OF DECISION: 10 December 1999

K Raphael - Judicial Member BEFORE: O McDonald - Member L Farmer - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Disability Discrimination - Employment -

MATTER FOR DECISION: Application to have complaint dismissed pursuant to s111

Applicant: In person REPRESENTATION: Respondent: G Jervis, agent

ORDERS: 1. Application refused. 2. Matter referred to Anti-Discrimination Board for investigation.

1 This matter came before the Tribunal on Wednesday 26 May 1999, Wednesday 22 September 1999 and on Wednesday 17 November 1999. On those occasions the presiding judicial member was the Deputy President, Judge G Murrell. Judge Murrell is no longer Deputy President of the Administrative Decisions Tribunal and the Tribunal was reconstituted with Mr Kenneth Raphael as the Judicial Member for the hearing of the Section 111 application by United Bonded Fabrics Pty Limited on 2 December 1999. 2 Mr Roseman was employed by United Bonded Fabrics for about 8 years until 15 October 1997 when he was dismissed. On 13 June 1997 Mr Roseman had made a complaint to the Anti-Discrimination Board with whom he communicated after his dismissal had taken effect. However, he also took proceedings in the Industrial Relations Commission of New South Wales in relation to his dismissal and because of the provisions of s.90 of the Industrial Relations Act 1996 the Anti-Discrimination Board on 28 October 1997 wrote to Mr Roseman in the following terms: "I understand from our conversation that you have also lodged your complaint with the Department of Industrial Relations under their unfair dismissal laws. The Department of Industrial Relations requires that you are not dealing with your matter in any other jurisdiction while you have your complaint with them. As discussed, we will await the outcome from Industrial Relations before proceeding here. If you are able to resolve your complaint and do not wish to pursue it with the Board, please write or ring to let us know. If you still want the Board to proceed with your complaint after your matter has been heard at Industrial Relations, please write to the Board with details of what happened...." 3 When Mr Roseman's complaint went to the Industrial Relations Commission, it was conciliated by Commissioner Kelly. The result of that conciliation was an offer to Mr Roseman to pay him the equivalent of 12 weeks' pay ($11,676.96). The payment was made on the basis that Mr Roseman signed a Deed of Release and at the conciliation the following exchanges took place in accordance with the transcript, a copy of which has been provided to the Tribunal: Commissioner: "Mr Roseman, you heard what I said about the proposal to settle the matter and the offer that has been made by Mr Jervis who appears with Mr Norris in this matter. Do you understand that by firstly, the signing of the Deed of Release and the acceptance of the offer that has been put to date, that that is in full and final settlement of this matter?" Applicant: "Yes, Sir." Commissioner: "Thank you very much. Mr Jervis do you want to say anything further?" Jervis: "...." Commissioner: "...." Jervis: "...." Jervis: "The last thing, Commissioner, is that the Deed of Release will show that it's in full and final settlement of all claims either that could or would or may have been made out of the employment, save and except for a workers' compensation claim." Commissioner: "Yes. I think I've explained to Mr Roseman the workers' compensation. You understand that, Mr Roseman, do you?" Applicant: "Yes, I do." Jervis: "So its not just this claim, its all other claims except workers' comp." Applicant: "Yes." Commissioner: "Yes. Alright: Mr Roseman understands that...." 4 A Deed of Release was prepared and sent to Mr Roseman for signature. He held on to it for a short time before signing it and having it witnessed by his next door neighbour and counsellor, the Reverend Joseph Formosa. 5 Thereafter on 23 December 1997 Mr Roseman wrote to the investigation officer at the Anti-Discrimination Board advising her that he had appeared before Commissioner Kelly and stated: "During the proceedings an agreement was met to which I have signed a Deed of Release of which I would like to show to you, and also use this Deed as part of evidence regarding my insurance claim for stress and anxiety while enduring unfair treatment and discrimination which brought about my sacking from United Bonded Fabrics (workers' comp claim NS980713707480). In the Deed of Release a clause exists forbidding each party to publicise the terms in the Deed unless permissible by law. I need you to furnish me with a written reply if the Anti-Discrimination Act permits agreements previously envirid (sic) into at law to be submitted as evidence or supportive evidence in cases before it." 6 It is not clear if anything further happened until on 23 July 1998 Mr Jervis sent to the Board a copy of the Deed of Release. There was further correspondence between Mr Jervis and the Board on 27 August and 3 September 1998. According to the President's report the Board wrote to Mr Roseman on 24 September 1998 and to his solicitor on 13 October 1998 (following a letter from Mr Roseman of 27 September 1998). On 16 February 1999 Mr Roseman wrote to the Board as follows: "Dear Steve Baileys, With regard to our last phone conversation you asked me to give written permission to send my file to the Administrative Decisions Tribunal. Please accept this letter as my permission to do so. Thank you for your help." 7 The Respondent submits that the Deed of Release entered into by Mr Roseman effectively prevents this Tribunal from deciding an application brought by Mr Roseman because a term of the Release is as follows: "The employee releases and discharges the company from all claims (with the exception of workers compensation claims) which the employee has, or which but for this Deed, could, would or might at any time have or have had against the company in respect of arising out of, either directly or indirectly, the employment or the termination." 8 The Respondent submits this clause is sufficient to prevent an application being made to the Board or to this Tribunal. 9 The transcripts of previous mentions of this matter do indicate that the Tribunal believed it had before it a claim of the normal type ie. a claim for compensation arising out of discriminatory actions by the Respondent. But after hearing from Mr Roseman on 2 December the Tribunal as currently constituted believes that that might not be the true nature of the matter. The Respondent had advised the Board that it believed the Deed of Release prevented Mr Roseman from pursuing his complaint to the Board. Mr Roseman disputed that and for this reason the matter was referred to the Tribunal. The Respondent was in effect alleging that there was a bar to the Board investigating the complaint and it is the existence or otherwise of that bar that this Tribunal is being asked to consider. 10 Section 111 of the Act states: "(i) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or for any other reason the complaint should not be entertained, it may dismiss the complaint." 11 The Tribunal is being asked to find that the complaint should be dismissed because it should not be entertained as the complainant signed a Deed of Release. 12 The effect of Deeds of Release in relation to matters before this Tribunal was the subject of a definitive judgment of the NSW Court of Appeal in Qantas Airways Limited v. Gubbins (1992) EOC 92-454 where the Court held that whilst persons affected by discriminatory practices prohibited by the Act are not free to bargain away in advance their rights to seek relief under the Act the position is otherwise once disputes have arisen. 13 Per Gleeson CJ and Handley JA: "The Act encourages the settlement of disputes by conciliation and the President of the Anti-Discrimination Board and the Tribunal are directed to attempt to achieve settlements. (See ss. 92 and 106)". 14 It is clear then that the Act does not prohibit complainants from compromising or releasing accrued claims for damages. 15 The Court went on to find that the Tribunal had the power to decide whether or not a Defence of Accord and Satisfaction was available in any particular case. Thus the reference of this matter to the Tribunal in this way is a legitimate exercise of the Tribunal's power. 16 In his submissions Mr Roseman made it clear, for perhaps what was the first time, that what he was setting out to do was to have his complaint examined by the Anti-Discrimination Board. He stated on more than one occasion that he was not seeking damages, he didn't believe he could do that. The reasons why he wanted the Board to make an examination of his complaint appeared to have much to do with his workers' compensation claim but that would not, in itself, be sufficient for the Tribunal to dismiss the complaint. 17 Section 90 of the Anti-Discrimination Act requires the President to investigate any complaint made to him but this complaint was not so investigated because of the objections first of the Industrial Relations Commission and then of the Respondent. 18 We have made this excursion into the motive of the Applicant because we believe that it casts some light on what occurred at the Industrial Relations Commission and the circumstances surrounding the Deed of Release. 19 In Qantas v. Gubbins all judges made reference to the fact that the legal representatives of the parties did not advert to the decision of the High Court in Grant v. John Grant & Sons Pty Ltd (1954) 91CLR 112. Gleeson CJ and Priestley JA said: "....which sets out the principles by reference to which a Court will decide whether a general release will be held to cover a particular dispute. The rule is that the general words of a release will, in an appropriate case, be read down to confirm to the contemplation of the parties at the time the release was executed." Kirby P said: "No attention was given by the parties (or the Tribunal) to the well-established principle of equity that the general words of a release are limited always to such matters as were specifically in the contemplation of the parties at the time when the release was given. Not only is this a principle upheld in the Courts of equity. It is clearly a principle which the statutory injunction in s.108(1)(b) makes applicable to the suggested operation of the Deeds of Release executed by the Respondents here". His Honour went on to say: "The injunction by the Act that the Tribunal here should have regard to "equity, good conscience and the substantial merits of the case" would quite readily take the Tribunal to such a principle. It has obvious good sense. If a Deed of Release is signed by a party, perhaps as a compromise as in Grant and here, it should be open to a party to contend that the generality of the language of the Deed of Release was not, in the circumstances, intended to cover a particular matter. .....it is thus entirely legitimate to consider what is the subject matter to which such a Deed was directed if it is later contended that, despite the generality of its language, the parties at execution had something more confined in mind." In Grant itself the majority of the Court at page 129 said: "From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor". (emphasis added) 20 The scheme of the Anti-Discrimination Act provides for a two-step resolution of disputes. The first step is the investigation of a complaint by the President in an attempt by the President or his delegate to resolve the dispute by conciliation. The President has no powers to force a party to a dispute to do anything but the resolution of the dispute can be effected in many more ways than the mere paying of money by a person responsible for discrimination to a person who has been discriminated against. Indeed, it is considered an important function of the Board to educate parties and so to prevent the occurrence of discrimination in places it may have previously appeared. Conciliation of a dispute may well result in changes in work practices within an organisation responsible for discrimination or the ongoing monitoring of activities. Even if a matter is referred to the Tribunal the relief which the Tribunal can give is not limited solely to damages. (see s.113(1) and in particular s.113(1)(b)(iii)). 21 This Tribunal has had the advantage of hearing submissions from Mr Jervis and Mr Roseman as to what occurred at the conciliation of Mr Roseman's claim under the Industrial Relations Act. Although these submissions were not made from the witness box, were not under oath and were not the subject of cross examination they were made in the presence of the other party and were capable of and indeed were the subject of rebuttals. This Tribunal is not bound by the normal rules of evidence and we are satisfied that these submissions from the very parties who were present, together with the transcripts which we have read, constitute good evidence of what occurred. To the extent necessary they also constitute good evidence of the parties' intentions. 22 Having heard Mr Roseman and having read his correspondence with the Board it appears to this Tribunal that when Mr Roseman signed the Deed of Release he did not intend to prevent the continued investigation of his complaint by the Anti-Discrimination Board. On the other hand this Tribunal accepts Mr Roseman's submission that he did intend not to make any further claim by way of damages against his former employers in this jurisdiction. It was the possibility of a claim for damages that Mr Jervis and those he represented were intending to prevent by the requirement that Mr Roseman sign the Deed of Release. It is because the work of the Board and the Tribunal is not limited to the provision of damages from one party to another that this interpretation of the intention of the parties can be made. It does not make a nonsense of the scheme of the Act or of the arrangements between the parties. If Mr Roseman was the subject of discrimination, as he claims, there is plenty that either the President or the Tribunal can do short of giving him damages which will carry out the intentions of the Act. 23 This Tribunal is of the view based upon the submissions made and its reading of the transcripts and correspondence that it was the intention of Mr Jervis to restrict further claims for damages against his client. Mr Jervis made particular mention of Mr Roseman's workers' compensation claim and if he had intended to prevent Mr Roseman from continuing with his request for the Board to investigate the anti-discrimination complaint, he could easily have said so. The fact that he did not indicates to this Tribunal that his mind was not on the investigation at all but on the payment of money. Mr Roseman's mind was on the same thing. To this extent the parties were ad idem and the general words of the Deed of Release should not be so construed as to exclude an investigation or remedies short of the provision of damages. The Tribunal therefore dismisses the application under s.111 of the Act and refers the matter back to the Anti-Discrimination Board to investigate the complaint and to proceed in its normal manner. If the actions of the Board do not satisfy Mr Roseman and he requires the matter to be referred to this Tribunal for an inquiry under s.113 then he should be bound by the terms of the Deed and of his specific statements to this Tribunal that he is not seeking relief in the form of damages under s.113 1(b)(i).