Cairns Community Legal Centre Inc v Fry [2001] QIRC 45 (2001) 166 QGIG 402

402 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331(b) – application to dismiss cause Cairns Community Legal Centre Inc AND Julie Fry (No. B376 of 2001) COMMISSIONER BLADES 2 April 2001 Unfair dismissal – Application to dismiss – Conciliation Conferences – Terms of settlement agreed – Respondent alleged agreement conditional – Found unconditional – Oral agreement binding – Reinstatement application dismissed – Costs application – Applicant not within s. 335(1)(a) Industrial Relations Act 1999 – Application to dismiss not a continuation of reinstatement application – Parties not the same – Section 335(1)(b) of no application – Costs denied. DECISION On 17 November 1999, an application was filed by the Queensland Services Industrial Union of Employees (the Union) for the reinstatement of Julie Fry to her former position with the Cairns Community Legal Centre Inc (CCLC). This application is brought by the CCLC for an order that that reinstatement application (No. B1582 of 1999) be dismissed or that the Commission refrain from hearing that application or that Ms Fry be ordered to execute a certain Deed of Release. The application is brought pursuant to s. 331 of the Industrial Relations Act 1999 (the Act). The Union has not appeared on this application which is defended by Ms Fry, who was named as the respondent. The applicant relies on s. 331(b)(ii) of the Act which provides:– “The court or commission may, in an industrial cause– (a) . . . (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers – (i) . . . (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; ”. A telephone hearing was conducted between the parties. Affidavit evidence, not subject to any cross–examination was relied upon. The evidence revealed that there was a history extending over 15 months, there were 4 formal conciliation conferences held, informal discussions occurred and dates of hearing had twice been set and vacated. The applicant alleges that agreement had been reached twice but the respondent subsequently resiled from those agreements and refused to sign written terms of settlement. It is not necessary to refer to any of that history in detail, other than to say that the delays were not necessarily all of the respondent’s doing and in fact she has been the only party to file in the Commission statements of witnesses in the original application, as required by a Directions Order. Ms Fry is herself a Solicitor of the Supreme Court of Queensland. The real issue lies in what was agreed to at a Conciliation Conference held before Commissioner Brown on 11 September 2000. The applicant alleges that at that Conference, Ms Fry was taken clause by clause through the Deed of Settlement where the existing clauses were changed to accord with her wishes. That allegation is not denied. In very brief terms, the Deed of Settlement provided for the substitution of a resignation for a dismissal, the issue of a statement by the applicant’s Management Committee referring in positive terms to aspects of Ms Fry’s employment (that statement was already annexed to the Deed), the discontinuance of the proceedings, costs and releases. At Ms Fry’s insistence, the release was altered to exclude a claim for recovery of wages that she had raised. She accepts that she agreed to these clauses. The applicant alleges that the agreement was unconditional whereas Ms Fry alleges that the agreement was subject to her obtaining legal advice about recovery of wages. She told the Commission in her affidavit that Commissioner Brown had told her that it was not possible to pursue a claim for outstanding award entitlements in the QIRC and that an Industrial Magistrate should hear such a claim. At the hearing, she explained that Commissioner Brown said that it was not possible to pursue the wages matter in conjunction with the reinstatement application. She said that Commissioner Brown told her to obtain legal advice. It was her understanding therefore that the agreement reached at the conference was expressly subject to her obtaining legal advice. She subsequently received advice from the Industrial Inspectors Office that the most appropriate avenue for pursuing the claim (for wages) was as part of the reinstatement application. Later on 11 September, after the Conciliation Conference had concluded, Ms Fry directed a fax to the applicant seeking the payment of $462.12 in regard to some Time Off In Lieu and $2,227.56 being 3 weeks pay because the employer had failed to make her final termination pay until three weeks after termination. Understandably, that demand has not been accepted. There was no allegation by either side that there was any express reservation that the agreement was conditional upon legal advice. The terms of settlement of the reinstatement application had been agreed upon. It was expressly agreed that the wages claim would be excluded from the terms of the agreement, leaving the respondent to pursue that claim in an appropriate jurisdiction. No matter what advice she received, the wages claim could not be pursued in conjunction with a reinstatement application. It was a separate claim, whether it was heard in the Industrial Commission or before an Industrial Magistrate. Commissioner Brown’s Certificate issued under s. 75(3)(a) of the Act was admitted in evidence. It was not contradicted. It lays bare the Commissioner’s frustrations. It reads in part:– “In the most recent attempt at conciliation the applicant and the respondent reached agreement on a settlement of the application. -- 1 of 2 -- 12 April, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 403 The settlement included, among other things, the respondent conceding to the applicant (i.e. Ms Fry) the right to pursue a recovery of wages action for monies allegedly owing. Given previous experiences, the Commission sought and received an undertaking from both the respondent and the applicant that the settlement would be effected without delay and in the terms agreed. This, however, did not occur. The applicant has now, despite her assurances, refused to settle the application for reinstatement unless the sum of $2,500 is paid. This amount is, according to the applicant, to finalize the recovery of wages matter. This demand complicates entirely the matter of the application for reinstatement. In my view agreement to settle the application for reinstatement has been derailed by the applicant over an issue not related to the application. That is to say that the applicant seeks to use the threat of continuing her application for reinstatement to further her claim for the separate matter of recovery of wages. As a result of this demand, the application for reinstatement, in my opinion, is no longer a bona fide application.”. Commissioner Brown says nothing about a conditional settlement, the applicant says it did not occur, the respondent says she “understood” that the settlement was conditional. If there was a mistake, it was a unilateral mistake which is of no consequence at law. The applicant was unaware of the “mistake” and had no responsibility for that “mistake” – see Contract Law in Australia 3 rd Edition – Carter & Harland para 1238. The respondent had expressly agreed that the wages claim would be excluded so, as regards the Deed of Settlement, there was no need to seek legal advice. What happened to be the appropriate Tribunal in which to take wages recovery action was irrelevant to the reinstatement application. Ms Fry would appear to have gone to such extremes in ensuring that the terms of the Deed suited her situation that I do not expect she would have failed to also include a reservation about legal advice. On all of the evidence, I am satisfied that the settlement was unconditional. It was a settlement which fell into the first category of agreements referred to in Masters v Cameron (1954) 91 CLR 353. It was an agreement by which the parties had reached finality in all of the terms and they had intended to be immediately bound. The signing of a formal written agreement was unnecessary for the validity of the oral agreement. A reinstatement application is to obtain reinstatement or re-employment or to seek compensation for unfair dismissal. The purpose of such an application is not to seek the payment of an outstanding wages claim which at best was dubious. The applicant complains that the total costs of the reinstatement application to date amount to $11,500. The respondent has agreed that she is no longer seeking reinstatement and has expressed satisfaction with a resignation and the issue of a statement. Her claim for wages has been reserved and she is still entitled to pursue that claim. She will suffer no detriment if the reinstatement application lodged 15 months ago is brought to finality. In all of the circumstances, I am satisfied that further proceedings are not necessary or desirable in the public interest. It is my view that the terms of the oral agreement should be enforced. The applicant should withdraw the dismissal, reinstate Ms Fry and accept her resignation as from 29 October, 1999. The applicant should also provide Ms Fry with the written statement signed by the President of the Management Committee in the terms set out in Schedule A to the Deed of the Settlement. There is some authority for this procedure to be found in Pauls Ltd v. Mikhail 163 QGIG 273. If Ms Fry does not co-operate with the resignation, the applicant should simply supply the statement referred to. I order that Reinstatement Application No. B1582 of 1999 be dismissed. The applicant seeks an award of costs alleging it was incurred $3,223 on this application. I have some sympathy for the applicant. Reasonable costs are well justified for the work performed after Commissioner Brown issued his Certificate on 9 October 2000. He warned Ms Fry that she may incur costs. However, for technical reasons, I think the applicant must be denied costs. The applicant is unable to reply upon the provisions of s. 335(1)(a) of the Act to seek an order and must therefore rely upon s. 335(1)(b). However, this is not an application for reinstatement. His Honour the President identified an issue in this regard in Dilena v. Queensland Ambulance Service (1999) 162 QGIG 269 as to whether the application to dismiss is to be treated as a fresh application falling outside s. 335(1)(b) or is an application within the existing reinstatement application and therefore within s. 335(1)(b). It is my view that this is not an application within the existing reinstatement application. The parties are not the same. The applicant in the reinstatement application was the Union in its own right. Section 74(3) provides that an application may be made by an employee or with the employee’s consent, an organisation. The Act thus recognises there can be either of two applicants, the employee or the Union. This is a separate and distinct application to dismiss an application with different parties. This applicant therefore does not fall within any of the provisions of s. 335 and the costs application is refused. I order accordingly. B.J. BLADES, Commissioner. Released: 2 April 2001 Appearances:– Mr J. Jacobs, with him Ms T.L. Fantin and Mr A.J. Brooks, of Morrow and Associates for the Applicant. Ms J.A. Fry, on her own behalf. -- 2 of 2 --