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". Evidence and submissions Health Secretary 1. In her affidavit Ms Yu deposed to the following: 1. At the directions hearing on 28 February 2020 an agreement was reached between the parties on terms to settle the proceedings, including on the terms of the deed of release that would reflect that settlement. 2. She prepared a deed of release containing the agreed terms ("Deed"). A copy of the Deed was attached to the affidavit. 3. On 9 March 2020 Ms Yu sent an email to Mr Liszt attaching the Deed for execution. Her email stated, amongst other things: "I remind you that no further action will occur until you return a signed copy of the Deed." 1. Also on 9 March 2020 Ms Yu arranged to send a copy of the Deed to Mr Liszt by registered mail. Her covering letter stated, amongst other things: "Please be reminded that there will be no further action by the Sydney Local Health District until you return a signed copy of the Deed." 1. She confirmed with Australia Post that Ms Liszt collected the registered mail on 11 March 2020. 2. She has not had any subsequent correspondence with Mr Liszt. She only became aware of the correspondence referred to at [7] and [9] above when she made enquiries of the Registry after being notified that a further directions hearing had been scheduled for 6 April 2020. 3. She has not received from Mr Liszt a signed copy of the Deed. 1. The Health Secretary's submissions included the following: 1. The evidence demonstrates that the parties in negotiation reached agreement upon terms to settle the proceedings. Such a settlement is of a contractual nature. The parties reached finality in the arrangement of all the terms of their bargain and intended to be immediately bound to the performance of those terms, as referred to in Masters v Cameron (1954) 91 CLR 353 at 360. 2. There is no suggestion that the Deed does not reflect the agreement, including as to the terms of the Deed itself, reached by the parties on 28 February 2020. 3. Mr Liszt entered into the settlement agreement competently and voluntarily. The whole of the agreement-making process was assisted by the Commission. The Commission finalised the hearing of the matter on the basis of a settlement. It follows that there is no basis for the agreement to be set aside. 4. One of the objects of the Act in s 3 is the provision of a framework for the conduct of industrial relations that is fair and just. It would not be fair and just to allow Mr Liszt to walk away from the settlement agreement. 5. Under s 163 of the Act the Commission, in performing its functions, must take into account both the objects of the Act as well as equity, good conscience and the merits of the matter. It would be contrary to this section for the Commission to allow a party for no reason to resile from a settlement agreement. 1. The Health Secretary referred me to a number of authorities that related, firstly, to the question as to when a contract can be said to have been created between parties, and, secondly, the public interest in holding parties to bargains they have made in settlement of proceedings. 2. The Health Secretary also made reference to "steps taken by the Respondent even prior to the Deed being executed in compliance with the agreement reached in front of and with the assistance of the Commission on both 21 January and 28 February 2020". There is no evidence of the steps allegedly taken by the Health Secretary and so I have not had regard to this submission. Mr Liszt 1. Mr Liszt's submissions came down to the following propositions: 1. It is the Health Secretary's case that if he had remained in employment he would have posed a risk to himself or others. The proposed settlement anticipates the possibility of him returning to work. This gives rise to safety concerns. The Nursing and Midwifery Council of New South Wales ("Council") is an "independent body responsible for the standards of practice of registered nurses exercising their profession". The settlement should not be enforced until the Council has had the opportunity, following self-referral by Mr Liszt, to determine "the substance of the [Health Secretary's] claims in relation to unsafe practice so as to assist the final decision of the Commission". In particular, he should not "attend any other training until serious allegations into his practice are resolved" by the Council. 2. The parties did not in any event conclude a binding agreement on 28 February 2020. On that date I had, rather, "announced that the terms were not settled (perfected)". The case falls into the third category in Masters v Cameron, in that there was no intention to finalise any settlement unless and until the Deed was signed, and a "Notice of Release" (which I presume is intended to be a reference to a notice of discontinuance) provided to the Commission. 3. The interests of justice require a "recognition" that no settlement was binding. 4. A court may have a discretion to set aside a settlement agreement, or to refuse to give effect to or act upon it. 1. Attached to Mr Liszt's submissions was a copy of the letter of 9 March 2020 referred to at [17(4)] above. Consideration 1. It is apparent that Mr Liszt seeks to continue to prosecute his unfair dismissal claim. In many respects, his arguments as to the need to refer his conduct to the Council are predicated on his claim proceeding to a determination on the merits, with the views of the Council being used "to assist the final decision of the Commission". 2. If it is found that a binding agreement was reached on 28 February 2020 to which Mr Liszt is to be held, the necessity for and relevance of any referral to the Council in the proceedings before the Commission, about which the Health Secretary made significant submissions, does not need to be considered, other than in one respect. 3. That is, Mr Liszt submitted that, if the Health Secretary is correct that he poses a risk to himself or others, returning him to work under the terms of the proposed settlement might exacerbate that risk. This it would seem is a matter on which Mr Liszt contends the Council's views ought to be obtained. I do not accept this submission. 4. The arrangements contemplated by the Deed anticipate Mr Liszt receiving "refresher" training and being assessed as to his competence in a particular area of practice, namely violence prevention and management. It was his alleged failure to have demonstrated such competence that led to the cessation of his employment with the Sydney LHD. If Mr Liszt is assessed as competent he would have addressed the Health Secretary's concerns. Only then would he be returned to the casual roster. I do not consider that these arrangements place Mr Liszt or anybody else at risk. 5. More particularly, I do not consider that the Commission requires, or would necessarily be assisted by, any views that might be expressed by the Council on these arrangements. 6. The real questions before the Commission are whether a binding agreement was made between the parties on 28 February 2020 and, if so, whether there is any reason why the Commission should not give effect to it. 7. Both parties relied on Masters v Cameron in which Dixon CJ, McTiernan and Kitto JJ stated at 360: "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract." 1. The Health Secretary submitted that the negotiated settlement "fell into category 1 or possibly 2 as recognised in Masters v Cameron". Mr Liszt submitted that the case falls into the third category. 2. To my mind this case falls more into the second category. Following the discussions on 28 February 2020 the terms of the settlement, including the terms of the deed to reflect that settlement, had been agreed between the parties. All that was left was for Ms Yu, on behalf of the Health Secretary, to create a "clean" version of the Deed and provide it to Mr Liszt for execution. She did that. 3. In relation to Mr Liszt's submissions summarised at [20(2)] above, I do not accept that the transcript of 28 February 2020 reflects an announcement that the terms were not settled. I acknowledge that referring to the Deed as having been "all but finalised" was an unfortunate turn of phrase, as in reality the terms had been agreed. All that was required was for the document to be presented in a form ready for execution. 4. It is significant that there is no suggestion from Mr Liszt that the Deed is in any way inconsistent with the terms that were agreed on 28 February 2020. 5. I also do not accept Mr Liszt's submissions that the settlement was conditional on him signing the Deed and filing a notice of discontinuance. These were, in effect, machinery steps to give effect to the agreed settlement and to bring these proceedings to an end. Indeed, the order made on 28 February 2020 anticipated the proceedings otherwise being closed even in the absence of a notice of discontinuance being filed. 6. There is also no substance to the contention in Mr Liszt's letter of 26 March 2020 that the Health Secretary "closed down" discussions. Any discussions regarding the terms of settlement, including the terms of the Deed, were finalised on 28 February 2020. It is clear from the email and letter both dated 9 March 2020, referred to at [17(3)] and [17(4)] above, that the Sydney LHD would take no steps to implement the settlement before receiving a signed copy of the Deed. There is nothing untoward or remarkable about this. Indeed, it is entirely to be expected given that the settlement purportedly reached on 21 January 2020 had not been finalised. 7. I find that on 28 February 2020 the parties entered into a binding agreement as to the terms on which these proceedings were to be resolved. 8. In Dr Payne v The University of Sydney & Anor [2000] NSWIRComm 102 Schmidt J stated as follows: "94. The Court cannot overlook the important public interest in parties adhering to the bargains which they make in settlement of [proceedings] which they have brought, thereby bringing litigation to an end. This must especially be the case when one side of the bargain has acted in accordance with the agreement reached and the other has benefited as a result. That was plainly the case here, where Dr Payne himself sought payment of long service leave in advance in accordance with that agreement, before he sought to repudiate it. Here, it cannot be overlooked that the bargain was made during a second attempt at conciliation before the Court, in circumstances where the matter was otherwise listed for hearing, where the all parties were legally represented and where the Court was informed of the settlement reached and then also acted in accordance with that advice." (Emphasis added) 1. Mr Liszt has not demonstrated a basis on which it could properly be concluded that he should not be held to the agreement reached on 28 February 2020. All that comes across in his submissions is that he has had a change of heart, or alternatively has devised an argument (the need to involve the Council) which had not previously occurred to him. Either way, it is not enough. 2. I accept the Health Secretary's submissions that permitting Mr Liszt to resile from the settlement agreement would be contrary to s 3(a) and s 163 of the Act. But I would take the matter further. 3. The Act places an emphasis on the Commission attempting to resolve industrial disputes by conciliation. This is one of the objects of the Act: s 3(g). In the context of unfair dismissal claims, the Commission must endeavour "by all means it considers proper and necessary" to settle claims by conciliation: s 86. Almost by way of emphasis, the Act expressly allows for conciliation to be attempted even after the commencement of arbitration: s 87(2). It would undermine the clear legislative intention of the Act to permit a party, without proper reason, to walk away from a settlement reached in conciliation. 4. It follows that, contrary to Mr Liszt's submissions, the interests of justice do not require recognition that no settlement was binding. Rather, the opposite is true. 5. It is not necessary to explore Mr Liszt's final submission, namely that the Commission could set aside the settlement agreement or refuse to act upon it. Even were that discretion to reside in the Commission, I would refuse in the circumstances to exercise it. 6. The Health Secretary has requested that the proceedings be dismissed or permanently stayed. Having regard to s 87(1) and s 162(2)(h) of the Act, and to the approach taken in Payne at [97], I consider that the appropriate course is for the proceedings to be permanently stayed. Order 1. I order the permanent stay of these proceedings. Damian Sloan Commissioner ********** Endnotes 1. Tcpt 21 January 2020, pp 58(3)- 59(5) 2. Tcpt 28 February 2020, pp 1(19) – 2(15) 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. Decision last updated: 21 April 2020