Industrial Relations Commission of New South Wales CITATION: Tareq Altaranesi and the Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health [2010] NSWIRComm 1037 APPICANT Tareq Altaranesi PARTIES: RESPONDENT The Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health FILE NUMBER(S): IRC 2152 of 2008 CORAM: Bishop C CATCHWORDS: UNFAIR DISMISSAL - applicant represented by Counsel - hearing commenced - oral evidence commenced - parties sought conciliation from Commission - conciliation undertaken by Commission - settlement reached - Commission's standard terms used - no further deed to be completed - terms of settlement executed between parties - tendered in proceedings - stood over generally pending completion of certain terms - notice of discontinuance to be jointly executed and filed - subsequent correspondence from applicant - no longer legally represented - dissatified with wording of documents supplied as per terms - sought re-listing - listed for directions - respondent advised cheque and required documents forwarded to applicant - submitted all terms complied with - receipt confirmed by applicant - respondent sought dismissal of proceedings - applicant sought further hearing. HELD - terms of settlement signed by applicant - settlement confirmed in proceedings on day - terms provide for conclusion of proceedings on payment of sum referred to - payment made - respondent complied with all other terms - consent by applicant to content of respondent's documents not required by terms - application dismissed per s.174 LEGISLATION CITED: Industrial Relations Act 1996 Bakar v Department of Education and Training [2009] NSWIRComm 1082 CASES CITED: Fox v GIO Australia Limited [2002] NSWIRComm 318 Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297 HEARING DATES: 1/06/10 and 5/07/10 EXTEMPORE JUDGMENT DATE : 5 July 2010 APPLICANT: Tareq Altaranesi LEGAL REPRESENTATIVES: RESPONDENT: Mr A Britt, of Counsel Mr N Rudd, Director General of Department of Health DECISION: 2 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 5 July 2010 Matter No IRC 2152 of 2008 Tareq Altaranesi and The Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health Application by Tareq Altaranesi re unfair dismissal pursuant to section 84 of the Industrial Relations Act DECISION [2010] NSWIRComm 1037 1 This is an application by Tareq Altaranesi against the Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health (SSWAHS) for a remedy pursuant to s.84 of the Industrial Relations Act 1996. Mr Altaranesi was dismissed from his position of Hospital Assistant, Grade 2 at Royal Prince Alfred Hospital, on 19 January 2009. He sought reinstatement to his former position. 2 The matter was originally allocated to Commissioner Macleay and subsequently reallocated to Commissioner Cambridge. The matter was set down for conciliation and directions on 23 February 2009 at which time conciliation took place. As no settlement could be reached directions as to the filing and exchange of witness statements were issued on 26 March 2009. Further directions were issued on 9 June, 3 July, 30 October and 18 November 2009. 3 The matter was reallocated to the Commission as currently constituted and set down for directions on 5 February 2010. Further directions were issued as to the filing and exchange of witness statements. and the filing of a s.90 Undertaking. 4 On 10 February 2010, a s.90 undertaking, as signed by Mr Altaranesi, was filed. 5 The matter was set down for hearing on the 1st, 2nd, 3rd, 4th and 15 June. 6 The hearing commenced on 1 June 2010. Mr Altaranesi was represented by Mr Steele of Counsel, SSWAHS was represented by Mr Britt of Counsel 7 The hearing proceeded during the morning and evidence was taken from Mr Altaranesi. After the luncheon adjournment the parties sought the Commission's assistance to conduct conciliation with a view to settling the matter. Both parties agreed to the conciliation and both parties indicated that they gave an undertaking not to lodge any objection to the Commission further hearing the matter. 8 After extensive conciliation between the parties, that took the entire afternoon, Mr Britt reported, on behalf of the parties, that a settlement had been reached. 9 I had provided the parties with standard terms of settlement which were then executed by the parties, with handwritten additions, and tendered as Exhibit 7. 10 Exhibit 7 was signed by Mr Altaranesi and also signed by Ms Whalan on behalf of the Director-General of Health. 11 Those terms of settlement provided for a monetary payment. They provided at item 5 the following: The payment of the sum to the applicant constitutes the final term of settlement, and the parties consent to these proceedings being determined as concluded by consent as soon as the sum is paid. 12 Certain proceedings were to be discontinued with no order as to costs as set out in items 6 and 7. 13 Item 8 indicated that the applicant was to be provided with the following documents by the respondent by the 15 June 2010: (a) Statement of Service (b) Statement of Regret. 14 Item 9 indicated that the applicant at his liberty may provide the respondent with a document to be placed on his personnel file in RPAH. 15 Item 10 indicated that the applicant at his liberty may provide the Commission with a document to be placed on the Commission's file in this matter. 16 Item 11 indicated that "this settlement is without admission by the parties". 17 The matter was adjourned to allow for the completion of the terms of settlement by way of those matters that needed to be finalised by the 15 June 2010. There was to be a subsequent filing of a Notice of Discontinuance which was, as in the normal course of proceedings such as these, to be signed by both parties. 18 On the 22 June 2010, the Commission received the following handwritten letter from Mr Altaranesi (Exhibit 8): "I am applying to refresh the case as the respondent failed to produce statement of regret and statement of service which meet my requirement as agreed. And I take the opportunity to advice (sic) the Commission that I ceased any authorisation that was given by Mr Majed Kheir as my solicitor and is no longer become not (sic) my solicitor. I wish the Commission to re-list the case and look forward to hear about the date of new direction meeting". 19 The matter was set down for mention and directions today's date, 5 July 2010. Mr Altaranesi appears on his own behalf, Mr Britt of counsel continues his appearance for the Director-General of Health accompanied by Mr Rudd. 20 Mr Britt has advised the Commission that the respondent has complied with the terms of settlement. Further that payment of the amount contained in the terms of settlement has been made by SSWAHS and Mr Britt tendered a document (Exhibit 11), being an SSWAHS remittance advice setting out the invoice with a photocopy at the bottom of the actual cheque. 21 Mr Altaranesi had advised the Commission that he has received the cheque and has not returned it. 22 Mr Britt also tendered the respondent's Statement of Regret (Exhibit 9) and the Statement of Service (Exhibit 10), as forwarded to Mr Altaranesi and.. 23 Mr Altaranesi had advised the Commission that he has received both documents, but that he does not agree with those two documents as they are not expressed in terms that he wishes. 24 The terms of settlement did not require that Mr Altaranesi had to agree to the wording of either the Statement of Service or the Statement of Regret. 25 It is my view, looking at the Terms of Settlement, particularly item 5, and applying the decisions of the Commission in Shunmoogam Pragalathan Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297, Timothy Fox v GIO Australia Limited [2002] NSWIRComm 318, and Josephine Bakar v the Department of Education and Training NSW [2009] NSWIRComm 1082, that it is appropriate that in all in the circumstances; conciliation having taken place between the parties, agreement having been reached and executed in terms of settlement tendered before this Commission, that pursuant to s.174 of the Act, the Commission hereby dismisses this application. 26 This matter is concluded. Elizabeth Bishop Commissioner 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.