Industrial Relations Commission of New South Wales CITATION: Smith v Spotless (No 1) [2005] NSWIRComm 341 Suzanne Smith PARTIES: Spotless Services Australia Limited FILE NUMBER(S): IRC 1163 of 2005, IRC 1164 of 2005 CORAM: Harrison DP CATCHWORDS: Applications pursuant to s84, unfair dismissal and s213 relief from victimisation - Interlocutory determination - withdrawal of union from proceedings allowed - application by Notice of Motion to set aside terms of setttlement refused - no bar to further proceedings pressed by applicant - matters to be argued in full - directions issued Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Workplace Injury Management and Workers Compensation Act 1998 HEARING DATES: 08/22/2005 DATE OF JUDGMENT: 09/20/2005 APPLICANT Mrs S Smith LEGAL REPRESENTATIVES: RESPONDENT Mr J Corlett Solicitor Australian Business Lawyers JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 20 September 2005 Matter No IRC 1163 of 2005 SUZANNE SMITH AND SPOTLESS Application for relief from victimisation under s 213 of Industrial Relations Act 1996 Matter No IRC 1164 of 2005 SUZANNE SMITH AND SPOTLESS Application re unfair dismissal pursuant to s 84 of Industrial Relations Act 1996 INTERLOCUTORY DECISION [2005] NSWIRComm 341 1 These matters were subject to conciliation proceedings in April 2005 which were adjourned to allow the parties to pursue resolution by agreement. 2 Further proceedings listed for 5 May 2005 were vacated on written application from Australian Business Lawyers (ABL) acting on behalf of the respondent, with consent from New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) then acting on behalf of Mrs Smith. The correspondence, received on 4 May 2005, advised that the parties were engaged in discussion with a view to resolving the matter. The correspondence further advised that the parties intended to meet in the week commencing 16 May 2005 and sought proceedings be stood over with leave to relist pending their discussion. 3 The matter was stood out of the list subject to advice from the parties. 4 On 21 July 2005 the USU filed a Notice of Change of Agent, informing that it ceased to act for Mrs Smith in both matters. 5 The matters were listed for Directions on 22 August 2005. Subsequent to the advice from the USU of 21 July 2005, Mrs Smith, acting on her own behalf, issued a Notice of Motion seeking Terms of Settlement, dated 25 May 2005 and signed by her, be set aside; and that there be no order as to costs. 6 The Notice of Motion was listed for hearing on 22 August 2005. 7 On 22 August 2005 Mr Martin appeared for the USU. Mrs Smith appeared on her own behalf, supported by her husband. Mr Corlett of ABL appeared on behalf of Spotless Catering ("the respondent") with Mr A Clinch. Notice of Change of Agent 8 The initiating applications in these matters are filed by the USU on behalf of its member, Mrs Smith. 9 Mr Martin noted the provisions of s 84 of the Industrial Relations Act 1996 ("the Act") which allow an application to be made by a dismissed employee or a registered industrial organisation on behalf of a dismissed employee. Mr Martin relied upon the following sections of the Act: · S 163, Rules of evidence and legal formality, which states: (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. · S 166, Representation of parties, which affords that a party to proceedings may appear personally or be represented by a legal practitioner or agent · S 170, Amendments and irregularities, which states: (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). 10 Mr Martin put: "Now we have no ill will towards Mrs Smith and we certainly don't stand before the Commission and make submissions that would prejudice her case. What we say is that we have made a determination that we no longer see any merit in the Union pursuing the matters and we say that it should be amended, the applications should be amended to reflect Mrs Smith as the applicant." 11 Mr Martin further relied upon Rule 130 of the Commission's Rules which states: RULE 130 WITHDRAWAL OF SOLICITOR OR AGENT 130(1) [Notice of change] Where a solicitor or an agent acts for a party to any proceedings and afterwards ceases to act, the solicitor or agent may, subject to subrule (2), file notice of the change and serve the notice on the parties. 130(2) [Leave of tribunal required] A solicitor or an agent must not file or serve notice of a change under subrule (1) without leave of the tribunal unless the solicitor or agent has, not less than 7 days before doing so, served on the former client notice of intention to file and serve the notice of change. 130(3) [Affidavit required] A solicitor or an agent filing a notice of change under subrule (1) must, except where the notice is filed with the leave of the tribunal, file and serve with the notice an affidavit showing service in compliance with subrule (2). 130(4) [Method of service on former client] A solicitor or an agent may serve a notice under this Rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor. 12 Mr Martin submitted that the terms of Rule 130 have been met. 13 The withdrawal of the USU was not opposed by any party. The USU were excused from proceedings which continue as applications by Mrs Smith on her own behalf. Notice of Motion 14 The Notice of Motion is supported by an affidavit sworn by Mrs Smith on 24 July 2005. Mrs Smith was not required for cross examination. 15 In her affidavit Mrs Smith deposes that she signed a document titled Terms of Settlement (attached to the affidavit) on 25 May 2005 at a time when she was on medication for depression caused by the stress of the allegations giving rise to these proceedings. The affidavit is supported by a copy of a certificate issued by Dr Z Oreb of the King Street (Newtown) Medical Centre, confirming that Mrs Smith has been suffering from depression for which medication has been prescribed. The certificate further advises that: Mrs Smith's concentration and decision making has been greatly effected since Feb 2005 due to (i) Depression (ii) Medications " 16 Mrs Smith put that when she signed the Terms of Settlement accepting an amount of money, she was of the belief and was advised by the USU that she was signing for the money only, she would be able to make changes to the terms of the settlement, and/or would be able to put a case to the Commission to prove that she had not misappropriated gift certificates or in any way acted dishonestly. Mrs Smith put that she sought an apology from the respondent for making the allegations against her which she was informed would not occur as to do so would prejudice the respondent in proceedings initiated by Mrs Smith under the Workplace Injury Management and Workers Compensation Act 1998. 17 The Terms of Settlement document is handwritten, consisting of eight particular points including at point 3 a requirement of confidentiality. The substantive terms are not relevant to the notice of Motion. The procedural terms require that the settlement be set out in a deed of release involving further undertakings between the parties and that a Notice of Discontinuance be filed in both matters within seven days of Mrs Smith receiving the settlement monies. 18 In the course of proceedings of 22 August 2005 Mrs Smith tendered correspondence from herself to ABL dated 24 July 2005 (MFI 2) advising that she had received the Deed of Settlement and that she did not want to sign it, preferring to have her case heard in full. The Notice of Motion seeking to set aside the terms of settlement was attached to the correspondence as were consent orders setting aside the terms of settlement, which Mr Smith invited ABL to execute to avoid the cost of proceedings in the Notice of Motion. 19 The Deed of Release is not executed, a Notice of Discontinuance has not been filed, and no settlement monies paid. 20 The Notice of Motion is opposed. 21 Mr Corlett submitted that the terms of settlement were entered into in good faith by the respondent and Mrs Smith, who had the benefit of advice from her union. Mr Corlett further submitted that the Commission lacked jurisdiction to set aside the terms of settlement. 22 Mr Corlett put that Mrs Smith has two applications before the Commission, each with a statutory remedy which does not include setting aside any arrangement or agreement between the parties. 23 Mr Corlett put that Matter No IRC 1164 of 2005 is an application pursuant to s 84 of the Act which, on merit, the Commission may or may not determine remedy prescribed by s 89 of the Act; and that Matter No IRC 1163 of 2005 is an application pursuant to s 213(1) of the Act for relief from victimisation which, on merit, the Commission may or may not determine remedy prescribed by s 213 (2) of the Act. 24 Mr Corlett directed attention to Part 5 of Chapter 4 of the Act which prescribes general powers of the Commission, which he put does not embrace a power to set aside an agreement between parties. 25 Mr Corlett submitted that the terms of settlement were signed by Mrs Smith on 25 May 2005 at a time when she had the support and advice of her husband and Mr Martin of the USU. Mr Corlett put that Mrs Smith was not under duress and that there is no assertion of misconduct or unconscionable behaviour on behalf of the respondent in seeking Mrs Smith to enter into the terms of settlement. Mr Corlett put that Mrs Smith did not convey her desire not to be bound by those terms for over two months from 25 May 2005. 26 Mr Corlett put that on 25 May 2005 Mrs Smith sought an apology from the respondent for the allegations made and not proven which led to the termination of her employment, and she was made well aware that such an apology was not an available option. Mr Corlett put that a fair compromise was achieved to the effect that the deed of release would include a statement that the respondent did not have any direct evidence that Mrs Smith stole $750 worth of gift vouchers on 19 December 2005. 27 Mrs Smith has held throughout that an equipment malfunction in the numbering of gift vouchers created the perception of vouchers being missing, and that her prior complaints concerning this difficulty had been ignored. 28 Mr Corlett put that Mrs Smith signed off on the terms of settlement on 25 May 2005, indicating that she understood and agreed to the settlement. Mr Corlett put that she did so with support and advice and at no time was the question of competence raised. 29 Mr Corlett put that there were important public policy considerations which supported parties being required to adhere to bargains made to bring litigation to an end. 30 Mr Corlett sought an order pursuant to s 174 of the Act on the terms of settlement of 25 May 2005. S 174 provides: 174 Powers when application settled by conciliation If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may: (a) dismiss the application, or (b) make an order on the agreed terms of settlement 31 Mr Corlett sought costs for the instant proceedings pursuant to s 181(2) of the Act, submitting that the applicant had initiated these proceedings without reasonable cause. Mr Corlett submitted that Mrs Smith had been put on notice that costs would be sought in the event she proceeded with the Notice of Motion. Consideration 32 An ex tempore ruling was made on 22 August 2005. 33 I accept the argument advanced by Mr Corlett that the Commission has no power to set aside an agreement between the parties as the Commission has no power to enforce the agreement, which may or may not be available in another place. 34 The question of whether the agreement is a bar to further proceedings in this matter is another question which may be argued in full in later proceedings. 35 The Notice of Motion was formally refused. There was no ruling given on Mr Corlett's application for an order pursuant to s 174 of the Act and no order as to costs. 36 There is, in my view, in addition to the issue of competence raised by Mrs Smith, a question of whether the impugned agreement of 25 May 2005 arose from conciliation in a manner which would bring it within s 174 of the Act, and whether it is a binding agreement or an agreement to effect a settlement that did not move to fruition. 37 I recognise the public policy issue advanced by Mr Corlett as an important consideration, however, in the circumstances of this matter, it must be balanced by an equal or greater public policy consideration that applicants have a right to be heard and issues of substance determined on merit having regard to relevant evidence and arguments. 38 Directions were issued to bring all matters to arbitration for appropriate determination. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.