Department of Families v Burgess [2003] QIRC 153 (2003) 174 QGIG 105

12 September, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331 – power to dismiss cause Department of Families AND Allain Mohammed Burgess (No. B1328 of 2003) VICE PRESIDENT LINNANE 2 September 2003 DECISION [1] At the conclusion of the hearing of this application I indicated to the parties that I would exercise the discretion in s. 331(b) of the Industrial Relations Act 1999 and dismiss matter B1343 of 2001. These are my reasons for that decision. [2] This application by the Department of Families (Applicant) seeks to have matter B1343 of 2001 dismissed pursuant to s. 331(b) of the Act on the ground that further proceedings by the Commission are not necessary or desirable in the public interest. Matter B1343 of 2001 is an application by Allain Burgess seeking reinstatement to his former position with the Applicant. [3] Matter B1343 of 2001 was the subject of a s. 75 Conference before the Commission on 22 July 2003. At the Conference Mr Burgess was represented by his duly appointed agent Brendan Kelly of the Queensland Public Sector Union of Employees. The Notice of Appointment of Agent was signed on 11 June 2003. [4] It is not disputed that at the conclusion of that Conference the Applicant accepted “in principle” an offer to settle, proposed by the agent for Mr Burgess. This offer to settle was made after a telephone discussion between Mr Burgess and Mr Kelly. The Applicant was to have confirmed its position on the “in principle” agreement by close of business on 22 July 2003. Following the conference the Applicant then orally confirmed with Mr Kelly, on the afternoon of 22 July 2003, that the Applicant had agreed to the terms put by Mr Burgess to settle the matter. This was then confirmed in writing in a letter from the Applicant to Mr Kelly dated 22 July 2003. That correspondence relevantly provided as follows: “… I wish to advise that the Department accepts Mr Burgess’ proposal for settlement in final resolution of this matter as follows: • Mr Burgess to be allowed to resign from the Department of Families with an effective date of 6 July 2001. Mr Burgess will provide the Department with a letter to this effect; • All reference to the dismissal of Mr Burgess to be removed from his Personnel file and all documents in relation to this matter to be placed on a separate and confidential file created for this purpose; and • The Department of Families to pay Mr Burgess six weeks salary at the AO4(03) level in addition to the two weeks salary paid in lieu of notice on the termination of his contract on 6 July 2001.”. [5] Attached to the correspondence was a release form for Mr Burgess’ signature. The “Release Discharge and Indemnity” document provided as follows: “IN CONSIDERATION of the Department of Families (DOF): 1. accepting my resignation effective on 6 July 2001 in lieu of dismissal currently recorded; 2. removing all reference to my dismissal from my departmental personnel file and all documents in relation to this matter being placed on a separate confidential file created for this purpose; and 3. paying to me six weeks net salary at the AO4(03) classification level; in full and final satisfaction and discharge of all claims whatsoever which I, Allain Mohammed Burgess or my executors or administrators may have against DOF arising as a result of an incident described in the Schedule, I hereby: -- 1 of 2 -- 106 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 September, 2003 a) release and forever discharge DOF from all actions claims, costs or demands whatsoever which I may have arising from the incident. b) agree that the payment which I have accepted from DOF is made without any admission of liability or negligence by DOF. c) agree to indemnify and keep indemnified DOF against any loss, cost or amount which DOF may become legally required to pay, with respect to or in any way connected with the incident. d) agree that this Release Discharge and Indemnity may be pleaded as a bar to any proceedings instituted by me or on my behalf at any time, with respect to or in any way connected with the incident. SCHEDULE The matter of the reinstatement application lodged with the Queensland Industrial Relations Commission (Case number B1343 of 2001) by the Queensland Public Sector Union, in connection with the termination of the employment with DOF of the said Allain Mohammed Burgess.”. [6] On receiving advice from the Applicant that they had agreed to Mr Burgess’ terms of settlement, Mr Kelly advised the Member of the Commission conducting the Conference that the matter had been settled. [7] The material before me and the submissions of both parties indicate that none of the above matters are in dispute. [8] What seems to have occurred subsequently is that when the Release, Discharge and Indemnity document was forwarded by Mr Kelly to Mr Burgess, Mr Burgess sought some legal advice in Sydney and has, since that time, refused to sign the document. In a letter dated 6 August 2003 Mr Burgess advised the Applicant that he was rejecting the Applicant’s offer. In particular, Mr Burgess indicated that he would not accept paragraphs (a) to (d) of the abovementioned document if all he was to receive was six weeks’ net salary. Mr Burgess then made a counter-offer that he would accept twenty-six weeks gross salary at the AO4(03) classification level if the Applicant wanted paragraphs (a) to (d) to remain. [9] The Release, Discharge and Indemnity document only purports to be in full and final settlement and discharge of all claims arising as a result of the incident which in turn is defined in the Schedule to be the matter of the reinstatement application B1343 of 2001 lodged by The Queensland Public Sector Union of Employees in connection with the termination of Mr Burgess’ employment. Paragraphs (a), (c) and (d) of the document simply particularise that discharge. Paragraph (b), the acknowledgement that any payment of monies is made without any admission of liability or negligence on the part of the Applicant, is a usual provision of release documents in this jurisdiction. [10] The Conference before the Commission on 22 July 2003 was a Conference in relation to B1343 of 2001. Any offers and counter-offers made during the course of that Conference must have been made in an attempt to settle the matter of B1343 of 2001. [11] In my view the release, discharge and indemnity goes no further than to ensure that the Applicant is released, discharged and indemnified in respect of actions etc. that may be brought by Mr Burgess which are connected with the matter of his reinstatement application and the termination of his employment with the Applicant. [12] The evidence before me indicates that at the Conference before the Commission on 22 July 2003 the parties reached an agreement which was subject to confirmation by the Applicant later that day. That confirmation was received in accordance with the agreement reached at the Conference. The agreement seems to me to fall into the first of the categories referred to by the High Court in Masters v. Cameron (1954) 91 CLR 353 at 360 i.e. “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”. [13] In the circumstances I dismiss matter number B1343 of 2001 on the basis that further proceedings by the Commission are not necessary or desirable in the public interest. Order Accordingly. D.M. LINNANE, Vice President. Hearing Details: 2003 25 August Appearances: Mr N. Twist and Ms E. Wells for the Applicant. Mr B. Kelly of The Queensland Public Sector Union of Employees, for the Respondent. -- 2 of 2 --