UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00506

DELIVERED : Thursday, 16 September 2021

FILE NO. : U 68 OF 2020

Applicant

AND

Shire of Halls Creek

Respondent

CatchWords : Termination of employment - Settlement agreement reached - Application compromised - Whether application should be dismissed

Legislation : Industrial Relations Act 1979 (WA) s 23A, s 27(1)(a)

Result : Application dismissed

Representation:

Applicant : Mr J Carey

Respondent : Mr A Sinanovic (of counsel)

Case(s) referred to in reasons:

Maurice Bradbury v Jos Van Baren, John Dewick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927

Prudential Assurance Co. Ltd. v McBains Cooper (a firm) [2000] 1 WLR 2000

MacLeod v Paulownia Trees Pty Ltd (1997) 78 WAIG 1057

Reasons for Decision

1         Mr Jamee Carey worked as a full time maintenance person for Shire of Halls Creek from 20 May 2019 maintaining shire municipal buildings, offices and residential houses, parks, gardens and other facilities.

2         The Shire terminated Mr Carey’s employment on 28 February 2020 for his alleged inappropriate behaviour toward his supervisor.

3         Mr Carey denies the allegations and contends that his dismissal was unfair and seeks an order for compensation for loss incurred and injury sustained as a result of his dismissal.

4         Mr Carey’s application for unfair dismissal was filed on 15 May 2020. The Shire contends that the delay of seven weeks beyond the period of 28 days prescribed by s 29(2) of the Industrial Relations Act 1979 (WA) (IR Act) is substantial. The Shire contends that Mr Carey had not provided a reasonable explanation for the delay and objected to the Commission accepting Mr Carey’s application out of time.

5         On 12 June 2020 the parties were notified of a directions hearing to program the tasks in preparation for the hearing and determination of the question of whether to accept the application out of time on 31 July 2020.  The hearing was scheduled in accordance with the party’s availability.

6         On 31 July 2020 Mr Carey’s representative foreshadowed that an adjournment may be sought because it had not been able to contact Mr Carey in the previous 24 hours and therefore had not been able to take further instructions. At the direction hearing the applicant’s representative had not been able to contact Mr Carey and was granted an adjournment.

7         On 4 August 2020 the parties were notified of the direction hearing on 21 August 2020, in accordance with their availability.

8         On 20 August 2020 the applicant’s representative advised that it no longer acted for Mr Carey and suggested a further adjournment may be necessary in order to provide Mr Carey with sufficient time to prepare for the hearing.

9         On the morning of the direction hearing, an officer of the Commission directly contacted Mr Carey by telephone and confirmed that he had received the email with the link to join the hearing by video conference and that he did not wish to conduct a test.

10      Prior to the direction hearing, the Shire notified Mr Carey and the Commission that in the event that Mr Carey failed to attend, it would seek an order that the application be dismissed pursuant to section 27(1)(a)(iv) of the IR Act on the basis that the applicant had failed to pursue his claim with due diligence.

11      Mr Carey did not attend the directions hearing. A hearing was arranged for 1 October 2020 to hear and determine the Shire’s application for an order to dismiss the matter.

12      The Commission refused the Shire’s application on the basis that at the hearing Mr Carey submitted that he had made several changes in his life, and he was now in a position to be able to attend to the preparation and appearances required to progress his case.

13      Directions for the hearing and determination of the question of whether to accept Mr Carey’s application out of time were issued on 12 November 2020 and a hearing was scheduled for 4 February 2021.

14      On 11 January 2021, the Shire requested the matter be listed for a directions hearing because Mr Carey had not complied with the direction to file and serve an outline of evidence for each witness he intended to call by 7 January 2021.

15      On 12 January 2021, Mr Carey sought an extension of time for the Shire’s proposed direction hearing because he was grieving the loss of a close family member and a friend.

16      On 13 January 2021, the Shire informed the Commission that the parties had reached an agreement to settle the matter and it no longer sought a further direction hearing.

17      On 14 January 2021 Mr Carey contacted the Commission by telephone to advise that he had agreed to settle with the shire over email and had received the Settlement Agreement document but would not sign it. Mr Carey said he wished to proceed and requested an extension to the period to file his outline of witness evidence. Mr Carey emailed the Shire and stated that he had not agreed or signed the settlement offer and would be prepared to go to the next hearing.

18      The Shire advised Mr Carey that it considered the matter concluded because Mr Carey had agreed to the terms of settlement as evidenced in the email exchange between them.

19      On 14 January 2021, Mr Carey requested an extension to the time for him to file outlines of evidence of witnesses due on 7 January 2021 and an adjournment to the hearing scheduled for 4 February 2021 because he had not been able to focus on preparing for the hearing because he was grieving the loss of three family members in the recent three months.

20      The Shire opposed the extension for the filing of outlines of evidence of witnesses and the request for an adjournment on the basis that Mr Carey had previously indicated on 31 December 2020 by email to them that he was prepared for the hearing.

21      The Commission notified the parties that the procedural issues and matters raised by the Shire would be considered at a hearing listed for 4 February 2021.

22      On 2 February 2021, Mr Carey notified the Commission that he would be unable to attend the hearing on 4 February 2021 because the current COVID-19 measures prevented his return to Perth, and he did not have access to a computer to attend through video link from his remote location and requested the hearing be adjourned to an alternative date.

23      On 4 February 2021 the Shire requested Mr Carey’s application be dismissed on the basis Mr Carey was barred or estopped from pursuing the proceedings because the parties had reached agreed settlement and the continuance of this matter in the current circumstances unfairly prejudices the Shire for several reasons, including having to incur costs which they should no longer have to incur.

24      The parties were advised that the applicant’s request for an adjournment of the hearing was granted until 14 April 2021.

What Must I Decide?

25      I must decide whether this application should be dismissed under s 27(1)(a) of the IR Act because the parties had reached an agreement to settle Mr Carey’s claim.

Principles

26      The Commission can dismiss a matter under s 27(1)(a) of the IR Act:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

27      The Full Bench in Maurice Bradbury v Jos Van Baren, John Dewick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927, 2928 considered s 27(1)(a)(ii) in circumstances where parties had reached an agreement and observed that ‘It is certainly not in the public interest, too, that the Commission should have proceeded to hear something which had been settled by agreement, even if, as a matter of law, the Commission could have heard the matter, which it could not have. The Commission did not err in the exercise of its discretion or otherwise’.

28      Applying Bradbury in a claim for unfair dismissal, Beech C observed in MacLeod v Paulownia Trees Pty Ltd (1997) 78 WAIG 1057, that once an agreement to compromise is reached, the claim of unfair dismissal is no longer before the Commission but the agreement of the parties in settlement of it.

29      That is, an unimpeached compromise agreement represents the end of the dispute or disputes from which it arose (Prudential Assurance Co. Ltd. v McBains Cooper [2000] 1 WLR 2000, [19]).

30      Consequently, if it can be said the parties concluded the terms of the agreement then a claim that a person has been unfairly dismissed is extinguished.

Did the Parties Reach an Agreement to Settle Mr Carey’s Claim?

31      On 11 January 2021 Mr Carey emailed the Shire’s representative indicating his acceptance of the Shire’s offer of $3000 in settlement of his claim. The Shire’s representative acknowledged Mr Carey’s acceptance by return email and advised that a Settlement Agreement would be sent to him by the end of the week.  Mr Carey emailed the details of his financial institution account and asked how long it would take until payment would be in this account.  He was advised that payments are usually made within 14 days of the Settlement Agreement being signed by both parties and endeavours would be made to pay it sooner if possible.

32      I find that an agreement to settle the claim was reached by the parties on 11 January 2021.  The compromise agreement reached by the parties is in writing contained in the email exchanges by parties. Mr Carey admitted in his email of 14 January 2021 and at the hearing that he had agreed to the settlement. Mr Carey says he did so before he found out that he could get an extension and that his acceptance of the offer was not official because he had not signed anything. However, Mr Carey is incorrect.

33      The email exchange and Mr Carey’s admissions clearly evidence that he accepted an offer to settle his claim. This is sufficient. The Settlement Deed records the terms of the agreement made including payment, releases, confidentiality and non-disparagement. Clause 3 of the deed provides that the settlement sum was not payable until the execution of the deed by the parties. However, Mr Carey’s refusal to sign the Deed does not mean that the agreement between the parties was not concluded by Mr Carey.

34      The agreement made on 11 January 2021 has overtaken Mr Carey’s unfair dismissal application like Prudential Assurance Co. Ltd. v McBains Cooper.

35      Consequently, adopting the principles in Bradbury, I am satisfied that further proceedings are not necessary or desirable in the public interest pursuant to section 27(1)(a)(ii) of the IR Act. 

36      For these reasons, I will order that application U 68 of 2020 be dismissed.