Liszt v Health Secretary in respect of Sydney Local Health District [2020] NSWIRComm 1030

Industrial Relations Commission New South Wales Medium Neutral Citation: Liszt v Health Secretary in respect of Sydney Local Health District [2020] NSWIRComm 1030 Hearing dates: Determined on the papers Date of orders: 21 April 2020 Decision date: 21 April 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are permanently stayed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – unfair dismissal claim – settlement reached in conciliation after commencement of arbitration – whether the settlement was a binding agreement – whether there were grounds to find the applicant should not be bound – consideration of objects of Industrial Relations Act 1996 and emphasis placed by the Act on conciliation of industrial disputes Legislation Cited: Industrial Relations Act 1996 (NSW) ss 3(a) and (g), 84, 86, 87, 162(2)(h), 163 Cases Cited: Dr Payne v The University of Sydney & Anor [2000] NSWIRComm 102 Masters v Cameron (1954) 91 CLR 353 Category: Principal judgment Parties: Adam Liszt (Applicant)

Health Secretary in respect of Sydney Local Health District (Respondent) Representation: Adam Liszt (Self)

A Britt of counsel (Respondent) File Number(s): 2019/268101 Publication restriction: Nil

Judgment 1. In these proceedings, the Commission is requested by the Health Secretary to dismiss or permanently stay unfair dismissal proceedings brought by Adam Liszt, a registered nurse formerly employed in the Sydney Local Health District ("Sydney LHD").

Background 1. Mr Liszt was employed on a casual basis with the Sydney LHD. He alleges that on 19 August 2019 he was dismissed from that employment. On 26 August 2019 he filed an Application for Relief in Relation to Unfair Dismissal pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). The Health Secretary defended the proceedings. 2. The matter came on for hearing before me on 20 and 21 January 2020. Mr Liszt was self-represented. The Health Secretary was represented by Ms K Yu, the Senior Industrial/Legal Officer with the Sydney LHD. 3. On the second day of the hearing, following the conclusion of the evidence but prior to final submissions, I was invited to assist the parties in an attempt to resolve the Application through further conciliation. It is sufficient for present purposes to reproduce the relevant extract from the transcript of the proceedings: [1] "YU: So in good faith the Local Health District has decided to make another offer to Mr Liszt which he may be agreeable to. Can we ask for about 10 minutes to have that discussion if possible? COMMISSIONER: Well you know my view. I'm always in favour of a negotiated outcome if it can be reached. Mr Liszt are you amenable to further settlement discussions? APPLICANT: Yes I can agree to that. COMMISSIONER: Thank you. The assumption I've made is that you want me to be part of those discussions? YU: Yes. COMMISSIONER: One should be careful about making too many assumptions. Then we will go off the record please. RECORDING EQUIPMENT SWITCHED OFF AT COMMISSIONER'S REQUEST COMMISSIONER: I have conferred at some length with the parties this afternoon and I am pleased to be able to report that they have between them agreed in principle on terms to resolve Mr Liszt's unfair dismissal claim. The terms of the agreement are to be contained in a deed of release between the parties, one of the terms of which will be a commitment to keep the agreement confidential. In those circumstances I do not propose to read onto the record the agreed terms, suffice it to say that I had, immediately before coming on the record, walked through each of the terms of settlement. I am satisfied not only that there is consensus on each of those terms but that both parties and in particular Mr Liszt understand what the terms of settlement anticipate. It is expected that while the mechanics of the settlement may take some time to finalise, the terms themselves should be done within the next week or two. One of the terms will be that Mr Liszt file a notice discontinuing these proceedings. To allow for those steps to take place and for the notice to be filed, I propose at this stage simply to stand the matter over until 21 February 2020. I grant the parties liberty to apply. If the matter remains open by 21 February 2020 and Mr Liszt has not sought to have the matter relisted, or requested an extension of time I will proceed to close the file administratively. I take this opportunity to congratulate the parties on being able to achieve the settlement they have reached this afternoon. I appreciate that it has been a difficult two days for everybody and I acknowledge that no settlement is possible in any matter without each side being prepared to make compromises on their position. I am grateful that both sides - Mr Liszt and the LHD - were prepared to compromise on their preferred positions and were prepared to see through the myriad issues confronting them to what was going to be a more effective and commercial resolution to this matter. You have the Commission's gratitude for the efforts that you have made this afternoon. I can only now wish the parties success in finalising the settlement and hope that it puts to rest all the matters that brought you here in the first place." 1. On 21 February 2020 the Commission received a letter from Mr Liszt dated the same day. In his letter Mr Liszt requested "an opportunity to make final submissions" in the proceedings. 2. I arranged to have the matter listed for a directions hearing on 28 February 2020. On that occasion Mr Liszt was again self-represented. The Health Secretary was represented by Mr A Britt of counsel, instructed by Ms Yu. Set out below is the entirety of the transcript of that directions hearing: [2] "COMMISSIONER: This matter has been listed for directions, as a result of a letter received from Mr Liszt dated 21 February 2020. Without putting too fine a point on it, Mr Liszt informed the Commission that the settlement which had been agreed on 21 January 2020 had not been capable of being finalised between the parties. Before I take that as a given and proceed to make directions in the mater, I would like to understand what went wrong and with the parties' indulgence, I would like to go off the record briefly, so we can have that conversation. Is there any objection from you? APPLICANT: No objection. COMMISSIONER: Thank you, Mr Britt? BRITT: No objection. COMMISSIONER: Thank you. RECORDING EQUIPMENT SWITCHED OFF AT COMMISSIONER'S REQUEST COMMISSIONER: I conferred at some length with the parties this morning and I am pleased to report that, notwithstanding some earlier disagreements between them, it has been possible for them to agree or confirm the terms on which this matter will be resolved. I have spent some time working with the parties on the proposed Deed of Release, which is all but finalised. One of the terms of the deed is that the settlement will remain confidential and for that reason I do not propose to go through the details of the settlement on transcript. Suffice it to say I am satisfied that both parties are well aware of what is expected of them under this settlement. To allow for the deed to be finalised and executed and for any other arrangements to be made, I will stand the matter over until 27 March 2020. I should indicate that it is anticipate that by that time, a Notice of Discontinuance will have been filed. If, on 27 March 2020, the file remains open and Mr Liszt has not sought to have the matter relisted or requested an extension of time, I will close the file administratively. I thank the parties for their forbearance during the course of the morning's proceedings. I congratulate them on being able to iron out the large wrinkles in the fabric that allowed for the settlement to be confirmed. I wish you well Mr Liszt in the arrangements contemplated by the settlement. Otherwise, the matter is adjourned." 1. On 23 March 2020 Mr Liszt again wrote to the Commission. He sought "an extension of time" in the matter together with a transcript of the hearing on 20 and 21 January 2020. 2. I arranged for an email to be sent to Mr Liszt on 24 March 2020. In addition to addressing Mr Liszt's enquiry regarding the transcript, the email asked Mr Liszt to clarify the status of the discussions between the parties and the length of the extension he was seeking. 3. In a letter to the Commission dated 26 March 2020 Mr Liszt wrote as follows: "I write in response to Commissioner Sloan's two questions: (1) Discussions were closed down by the respondent, 'there will be no further action until you return a signed copy of the Deed' Adam Liszt will not be signing the deed. (2) Adam Liszt requests an extension of time to 'self report' the allegations of unsatisfactory conduct and or misconduct while practicing as a registered nurse to the Nursing and Midwife Council of NSW. The Nursing and Midwifery Council of NSW advises me on 25 of March 2020 that I may self refer the employers allegations, and this is what I require an extension of time. I can not know the length of time this will take." (Sic) 1. I arranged for the parties to be notified on 27 March 2020 that the matter would be listed for a further directions hearing on 6 April 2020, to be conducted by telephone. On 2 April 2020 the parties were informed by the Industrial Registry that the time, but not the date, of the directions hearing had changed. 2. On 3 April 2020 the Health Secretary filed with the Industrial Registry an application seeking an order that the proceedings be dismissed or permanently stayed ("Application"). The Application was supported by an affidavit sworn by Ms Yu on 3 April 2020. 3. On 6 April 2020, prior to the directions hearing, Mr Liszt filed with the Industrial Registry his submissions in reply to the Application. 4. On the afternoon of 6 April 2020 I attempted to conduct the directions hearing. Unfortunately, due to a regrettable error on the part of the Commission, it was not possible to make contact with Mr Liszt and the directions hearing was aborted. 5. Having been unable to conduct the directions hearing I arranged for an email to be sent to the parties on 6 April 2020. I proposed directions to the effect that the Health Secretary have an opportunity to reply to Mr Liszt's submissions and that the Application thereafter be determined "on the papers". 6. By email dated 6 April 2020 the Health Secretary consented to the proposed directions. 7. A short while later Mr Liszt called the Industrial Registry and stated that he agreed with the proposed directions. In an email received by the Industrial Registry on 14 April 2020 Mr Liszt confirmed his consent to the Application being determined "on the papers".