CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00161

DELIVERED : WEDNESDAY, 27 April 2022

FILE NO. : B 39 OF 2022

Applicant

AND

Warwick Psychological Services

Respondent

CatchWords : Industrial Law (WA) – Contractual Benefit Claim – Previously filed Unfair Dismissal Application – Settlement offer – Mutual release – Bar to proceedings – Claim is trivial – Summary dismissal – Further proceedings not desirable in public interest – Application dismissed

Legislation : Industrial Relations Act 1979 (WA) 

Result : Application dismissed

Representation:

Applicant : Ms H Nyx on her own behalf

Respondent : Mr P Ward on his own behalf

Case(s) referred to in reasons:

Adam v East Metropolitan Health Service [2019] WAIRC 00262; (2019) 99 WAIG 556

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

Foley v G & J Reely School of Dancing Pty Ltd trading as Arthur Murray School of Dancing (1996) 76 WAIG 4342

Levaci v Canning Division of General Practice Ltd [2002] WAIRC 06176; (2002) 82 WAIG 2534

Reasons for Decision

1         On 26 April 2022, I granted the respondent’s application for summary dismissal of this proceeding. These are my reasons for doing so.

2         The applicant, Ms Hannah Nyx, was engaged by the respondent, Mr Paul Ward, in 2 or 3 separate capacities over the course of about two years: as an employed administrative assistant/receptionist, as an employed Provisional Psychologist; and prior to February 2021 as an independent contractor.

3         The factual background relevant to this application is not in dispute, and is embodied in the documents before the Commission in the form of:

(a) the correspondence between the parties and the Commission in U 99 of 2021 (Hannah Nyx v Warwick Psychological Services) following a conciliation conference on 15 February 2022;

(b) Ms Nyx’s Form 3 ‑ Denied Contractual Benefits Claim attachments; and

(c) documents filed by Ms Nyx for the purpose of this hearing on 14 April 2022.

4         Ms Nyx referred a claim of unfair dismissal to the Commission under s 29A(1)(a)(i) of the Industrial Relations Act 1979 (WA) (IR Act). It is common ground that she and Mr Ward participated in a conciliation conference in relation to Ms Nyx’s unfair dismissal claim U 99 of 2021 on 15 February 2022. It is also uncontentious that the conciliation conference led to a settlement agreement, the terms of which were recorded in an email from Commissioner Emmanuel’s Associate to the parties on 15 February 2022.

5         That email set out the terms of Ms Nyx’s offer of settlement. It provided, amongst other things, that Mr Ward would pay Ms Nyx a settlement sum of $7,500 gross, in addition to superannuation. The parties agreed to ‘transitional arrangements’, which were outlined in an email from Ms Nyx, attached to the Commission’s email. It also provided ‘The parties would agree to mutual release and a bar to further proceedings arising out of the employment and contracting relationship’.

6         The transitional arrangements enabled Ms Nyx to access Mr Ward’s practice’s emails and client database for four weeks to 15 March 2022 and to write to clients to inform them of her separation from Warwick Psychological Services (WPS) in order to facilitate a transition of Ms Nyx’s clients to her new practice. The transitional arrangements also provided, relevantly:

…

Access to see clients who are already booked in up to the end of the week (18/02) at WPS and aim to have all my materials and equipment out by this date.

Date of “resignation” to be recorded as Fri 25th Feb and casual access to clinic allowed to clinic to see clients who already have bookings unless they can be changed to Zoom.

…

7         Ms Nyx’s offer was accepted by an email from Mr Ward to Ms Nyx and the Commission on 16 February 2022. Payment of the settlement sum was made by Mr Ward on 17 February 2022. Ms Nyx subsequently confirmed that U 99 of 2021 should be discontinued, and it was discontinued.

8         Ms Nyx then referred a further claim of denied contractual benefits to the Commission under s 29A(1)(a)(ii) of the IR Act. She alleged the denial of benefits due under her contract of employment with Mr Ward. In particular, she claims for:

…payments that he [Mr Ward] missed (full days or part days of employment) for client related work…between 19 Feb 2021 and 25 Feb 2022…

PAYG tax not paid.

Superannuation not paid.

General entitlements not paid/paid out.

9         Ms Nyx quantified her claim as $680.13 for ‘backpay still owing’, $176.31 for superannuation from 11 February 2022 to 25 February 2022 and $583.10 for wages for the transitional period following settlement and associated with six client appointments in that period. Her total claim is for $1,439.54.

10      I must decide whether the terms of the settlement agreement are such that her new claim is barred, and therefore the new claim should be dismissed under s 27(1)(a) of the IR Act.

11      I consider the settlement agreement terms are clear. Both parties agreed to release each other from further claims arising out of the employment relationship, and that the settlement of U 99 of 2021 barred such claims.

12      Although Ms Nyx maintains that she did not intend to release Mr Ward from claims for payment for her services in the transitional period, her subjective intention is not relevant. The express agreement is that she would release Mr Ward from all claims relating to the employment.

13      The denied contractual benefits claims are undeniably claims arising out of the employment. This is obviously the case in relation to the claims that relate to alleged underpayments for the period before the settlement agreement date of 16 February 2022. As to the claims for the period after the settlement agreement, and up to 25 February 2022, the settlement agreement contemplated that there would be a transitional period to enable clients already booked with Ms Nyx to keep their appointments and for clients to transition to Ms Nyx’s new practice. Nothing in the transitional period terms drafted by Ms Nyx, and accepted by Mr Ward, expressly required Mr Ward to pay Ms Nyx when allowing her to access the clinic in the transitional period and enabling her to fulfill the six client bookings. There is no reason to regard this period as any different to, or a carve out from, the express agreement to release Mr Ward from further proceedings arising out of the employment relationship.

14      The Commission has stated on many occasions that it is not in the public interest for the Commission to proceed to hear something that has been settled by agreement, particularly when that agreement is the result of having invoked the Commission’s jurisdiction and dispute resolution processes: see Foley v G & J Reely School of Dancing Pty Ltd trading as Arthur Murray School of Dancing (1996) 76 WAIG 4342, Bradbury v Jos Van Baren, John Dewick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927, Levaci v Canning Division of General Practice Ltd [2002] WAIRC 06176; (2002) 82 WAIG 2534 and Adam v East Metropolitan Health Service [2019] WAIRC 00262; (2019) 99 WAIG 556.

15      On this basis, I am satisfied that these further proceedings are not necessary or desirable in the public interest because Mr Ward has a sound and complete defence to all of the claims Ms Nyx makes in these proceedings. The claims cannot succeed.

16      I should note that Mr Ward additionally submitted that the claim should be dismissed as trivial because he could establish that payments had been made to Ms Nyx, which either exceed, satisfy or substantially satisfy the claims. Ms Nyx accepts that she was paid by Mr Ward several payments after the payment of the settlement sum on 17 February 2022, which cumulatively exceeded the claimed amount of $583.10 for the transitional period. The parties do not agree on whether the amount paid reconciles with all entitlements over the entire period of the employment, or whether the amount corresponds precisely to the claims now made. However, even if the settlement agreement does not by its terms bar a claim for payment for the services Ms Nyx provided in the transitional period, it is clear she was paid both the settlement sum, finalising all claims prior to the settlement agreement date, as well as a further sum which would satisfy the claim relating to services performed after the settlement agreement date. I would therefore also find that the claim is trivial, thus warranting dismissal.