Industrial Relations Commission of New South Wales Barnaba and others v. Kitchenland Pty Limited [2005] NSWIRComm 1086 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANTS Ann Therese Barnaba, Julie Jones, Pamela Anne Brodie and Dianne Frances Teuma PARTIES: RESPONDENT Kitchenland Pty Limited FILE NUMBER(S): 730, 731, 732 and 733 of 2005 CORAM: Connor C termination of employment - retrenchment - settlement of matter - failure of employer to comply with terms of settlement - orders for compensation made CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Green v. Mini Quip Earthmoving (unreported) CASES CITED: Shagrin v. Diamond Rose NL (unreported) HEARING DATES: 06/02/2005 EXTEMPORE JUDGMENT DATE : 06/02/2005 APPLICANTS applicants appeared in person LEGAL REPRESENTATIVES: RESPONDENT Bernard Lloyd Cridlands Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 2 June, 2005 Matter Nos IRC 730, 731, 732 and 733 of 2005 Ann Therese Barnaba and others and Kitchenland Pty Limited Applications under S.84 of the Industrial Relations Act, 1996 SUPPLEMENTARY DECISION [2005] NSWIRComm 1086 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act four employees engaged as kitchen showroom consultants by Kitchenland Pty Limited (also known as Richard Knebel's Kitchenland) have lodged separate applications when their services were terminated on Thursday, 3 February, 2005, viz: (i) Ms A T Barnaba, who had been engaged since Friday, 15 October, 2004 and, according to her Part 6 application received an average weekly salary of $392.00 plus commissions; (ii) Ms Julie Jones, who has been engaged since Tuesday, 9 November, 2004 and, according to her Part 6 application received an average weekly salary of $548.00; (iii) Ms P A Brodie, who had been engaged since Friday, 1 October, 2004 and, according to her Part 6 application received an average weekly salary of $548.00; and (iv) Ms D F Teuma, who had been engaged since Tuesday, 5 October, 2004 and, according to her Part 6 application received an average weekly salary of $544.00 plus commissions. I am informed that the employees did not work the same hours each week and that accounts for the different amounts of remuneration that they have recorded in their Part 6 applications. I understand that Ms Barnaba was the only employee engaged on commission. 2 The termination of the four employees' services arose following a restructuring of the operations of Kitchenland and the decision of the employer, based on financial considerations, to engage staff on a commission basis only. In their Part 6 applications the four employees had nevertheless sought their reinstatement or, alternatively, monetary compensation in lieu thereof. 3 Registry staff allocated the matter to me and set the separate matters down for a conciliation and directions hearing on Friday, 4 March, 2005. The matters were adjourned for further mention on Friday, 11 March, 2005 and settled on terms which were confidential to the parties at that time. I understood that in due course, deeds of release were to be completed in the standard manner to give effect to the agreement of the parties and I made my conclusion of the matters conditional upon that deed of release. On that basis, I granted leave for the discontinuance of the matters in accordance with Rules 138 and 140. 4 But the matters were not concluded. Ms Barnaba, Ms Jones, Ms Brodie and Ms Teuma have signed the deed of release but, despite several unsuccessful attempts by them to bring the matters to a conclusion, they remain unresolved and the employees requested that I reconvene the proceedings. I set the matters down again for mention on Thursday, 2 June, 2005. It is not acceptable that a matter which was settled on Friday, 4 March, 2005 should remain unattended for three months. Once a matter is concluded, I would expect that the parties would have moved speedily to bring it to a conclusion in the terms that were agreed upon. The settlement of these matters were not complicated - for two weeks salary to be treated as severance payment to the four employees. It is disturbing to me that the matters remain unresolved after this length of time because, it would appear to me, that the employer has simply chosen to ignore the agreement that was made by it in the proceedings before me. 5 I re-convened proceedings before me on Thursday, 2 June, 2005. Ms Jones, Ms Brodie and Ms Teuma appeared in the proceedings. Ms Barnaba did not appear but she was represented by the other three applicants. Mr Lloyd represented Kitchenland. He explained that he had experienced difficulties in obtaining his client's signature to the deeds of release to give effect to the agreement of the parties. These matters have gone on long enough. I propose to bring them to a conclusion. 6 In the ordinary case, a deed of release is provided to give formal effect to the settlement reached and the settlement of the matter was conditional upon that deed of release. If that condition has not been satisfied, there remains a real question over whether agreement had been actually reached at all in the proceedings on Friday, 11 March, 2005. In my unreported decision of Tuesday, 8 December, 1998 in Green v. Mini Quip Earthmoving [Matter No.IRC 4307 of 1998] I made the following comments (at p.2) where a matter of ostensibly agreement between the parties broke down: "…If the agreement which I thought existed has broken down, the matter has not been settled at all. It must proceed to arbitration…" But a deed of release is no more than formal evidence of the terms of settlement. It is not necessary to establish agreement. In my unreported decision of Thursday, 8 November, 2001 in Shagrin v. Diamond Rose NL [Matter No.IRC 209 of 2000] there was no deed of release but I was satisfied that the position had been reached where the dispute between the parties had been concluded even though there was no instrument to give formal effect to the settlement reached. 7 In the circumstances, I propose to make orders to give effect to what was clearly an agreed position between the parties. I have nothing before me to confirm the level of Ms Barnaba's commissions and I am only able to accept the figure of $392.00 which she recorded in her Part 6 application as her average weekly earnings. My order on her behalf is confined to that extent. ORDER 1. Kitchenland Pty Limited shall pay to: (a) Ms A T Barnaba the sum of $784.00; (b) Ms Julie Jones the sum of $1,096.00; (c) Ms P A Brodie the sum of $1,096.00; and (d) Ms D F Teuma the sum of $1,088.00; within 7 days. 2. This order shall take effect on and from Thursday, 2 June, 2005. P J CONNOR Commissioner 02/06/2005 - Change in tile on citation page. - Paragraph(s) 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.