2004 WAIRC 11100
100421774

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES DIANA ELIZABETH DOWNS-STONEY
APPLICANT
-V-

DERBARL YERRIGAN HEALTH SERVICE
RESPONDENT
CORAM COMMISSIONER J H SMITH
DATE OF ORDER THURSDAY, 8 APRIL 2004
FILE NO. APPLICATION 37 OF 2003
CITATION NO. 2004 WAIRC 11100

Catchwords Industrial Relations Act 1979 (WA), agreement to compromise; jurisdiction; implied powers to make orders in terms of compromise ss 29(1)(b)(i) and (ii), 6, 23(1), 23A, 32, 32(a) Industrial Relations Act 1979; application of ss8, 67(1) 76(1), 183 and Schedule 1 Workers' Compensation and Rehabilitation Act 1981.
Result Commission has implied power to make orders in terms of an agreement to compromise claims made under s 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979.
Representation
APPLICANT IN PERSON

RESPONDENT MR G STUBBS (AS COUNSEL)



Reasons for Decision

1 Diana Elizabeth Downs-Stoney ("the Applicant") made an application under s 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 ("the Act") claiming she was harshly, oppressively or unfairly dismissed by Derbarl Yerrigan Health Service ("the Respondent") on 13 December 2002. The Applicant also claims in that application that she was denied benefits under her contract of employment. The application was filed on 10 January 2003.
2 The Applicant was employed by the Respondent as Director, Client Services from January 2002 until 13 December 2002. The Applicant states in her application that she was employed for 40 hours per week and worked approximately 20 hours of overtime each week. In relation to the Applicant's claim that she is owed amounts under her contract of employment it is stated in relation to the heading "Contractual Benefits" "To be advised following provision of documents in possession of defendant". Under the heading "What sums of monies are you claiming you are due under the contract of employment and what is each for?", it is stated "Higher duties amount underpaid, overtime/time of [sic] in lieu not paid approximately 800 hrs and underpayment of sick leave and annual leave".
3 The Commission's file records that particulars of claim were sought by the Respondent's solicitors but not provided as the parties entered into negotiations to reach an agreement to compromise the Applicant's claim.
Agreement to Compromise
4 On 17 September 2003, after some amendments were agreed to by the Applicant and Mr Robin Yarran the Applicant accepted an offer made by Mr Yarran to compromise her claims. Mr Yarran at that time was the President of the Respondent's Board. The terms of the amended offer accepted by the Applicant are as follows:
"Please be advised that the Board of Derbarl Yerrigan Health Service has resolved to offer you reinstatement to your position at Derbarl Yerrigan. I am authorised to negotiate your return with you.
Our offer is that you return at the same salary conditions and with no loss of your leave and other entitlements. You will be repaid a sum of money equal to the gap between the salary to which you would have been entitled during your absence, and the salary monies received from Worker’s Compensation and other insurers.
You will also be reimbursed for any overtime worked for which approval was given prior to your departure from Derbarl Yerrigan Health Services. These payments will be made immediately upon your acceptance of this offer.
You have also requested payment of your legal fees. Please provide Derbarl Yerrigan Health Service with receipts or invoices for unpaid accounts. So that these may be paid or reimbursed. We understand that you estimate these costs to be circa $10,000.00, and agree to pay your legal costs up to this amount.
I understand that you are keen to return to work at Derbarl Yerrigan. The Executive Committee and I welcome you back and look forward to working with you again. We hope to put all this sorry business behind us and apologise to you for what has happened.
Your return of course is with our acknowledgment that you had no case to answer with respect to the allegations made and the subsequent termination of your employment. This will be made clear to staff at Derbarl Yerrigan Health Service and other relevant parties, following consultation with you.
To accept this off [sic] please sign below as indicated"
Background
5 After the offer was accepted by the Applicant, the Applicant commenced employment with the Respondent on 23 September 2003 as the Director, Client Services. She also commenced to act in the position as Deputy Chief Executive Officer for a period of time. The Applicant says she was required by the Respondent to produce a medical certificate certifying her fit for work and assessing her future risk of injury. This requirement, I gather, occurred because the Applicant had redeemed a worker's compensation claim in June 2003 in relation to an injury or disability suffered by her while working for the Respondent. On 9 October 2003, she produced to the Board a medical certificate from a consultant psychiatrist certifying her fit for work as a Deputy Chief Executive Officer. Sometime later in December 2003, the Applicant's employment with the Respondent came to an end. The Applicant then sought to reactivate this application on this basis that the terms of the compromise had not been satisfied. In a conference for directions on 29 January 2004, the Commission set down the jurisdictional issue whether the claims for unfair dismissal and contractual benefits had been compromised and whether the Commission can make orders in terms of the compromise for hearing. The Commission informally directed the Applicant to provide particulars of the terms of the compromise and the Respondent to provide an answer to the particulars. In accordance with those informal directions the Applicant filed the following particulars:
"1. The terms of the compromise were discussed on a number of occasions with members of the board of Derbarl Yerrigan Health Service.
2. The culmination of all of the discussions which were held were conveyed to Mr Haydn Lowe. At the request of the Board of Derbarl Yerrigan Health Service, Mr Haydn Lowe drafted a letter of offer of restatement.
3. On the 17 September 2003 this letter was delivered by hand by a quorum of the Board members of Derbarl Yerrigan Health Service to my home. After a number of duly initialled amendments, it was signed by the President of the Board and myself at 1 Coast Rd West Swan.
4. The document was retyped later in the day and the amended copy was signed by both parties.
5. Following a resolution of the board both parties agreed that the original workplace agreement would be modified to reflect changes in Industrial Relations Law in the tenure of the contract and in the dispute resolution procedure.
6. A contract prepared by Mr Tim Retallack of Pullinger Readhead Stewart reflecting these changes was provided to the Board of Derbarl Yerrigan Health Service subsequent to the signing of the offer of reinstatement.
7. The Board of Derbarl Yerrigan Health Service offered a contract of employment in the terms of the modified document and both parties signed the contract on the 23 September 2003.
8. The signing of the document took place before a quorum of the Board of Derbarl Yerrigan Health Service at 156 Wittenoom Street East Perth.
9. This contract of employment and the letter of reinstatement are the only documents on which the particulars of the compromise are based. There were no verbal agreements made in relation to the compromise.
Secondly I state that the following terms of the contract have been satisfied:
1. I was accorded the status of Director of Client Services as confirmed in emails from the President and CEO to staff and in other correspondence to other stakeholders.
2. An office, access to the IT system, security pass, master keys to the building, a vehicle, fuel card and mobile phone were provided in accordance with the entitlements of the position.
3 I was required to perform the Director of Client Services and subsequently Deputy CEO and Acting CEO in accordance with agreements made with the Board of Derbarl Yerrigan Health Service (recorded in writing and in Board minutes).
4. I attended numerous meetings as the representative of Derbarl Yerrigan Health Service including interstate meetings of the National Aboriginal Community Controlled Health Organisation.
Thirdly I am required to state the amounts due under the terms of the compromise
1. $5634.60 This is the amount which is claimed at the rate of $54.5897 per hour for the higher duties from 28/1/2002 to 14/6/2002 following the deduction of an amount of $5037.30 payed in error at the rate payable to the redundant position of Director formally occupied by director Mr Ted Wilkes. This is confirmed in a memo recording a board resolution.
2. $507.12 This represents the additional superannuation for the period of Higher Duties calculated as 9% salary.
3. $2460.00 Mobile phone packaged value amount agreed on the acceptance of the offer of appointment in January 2002.
4. $484.00 Refund for vehicle deductions incorrectly made.
5. $11056.50 Vehicle pro-rated packaged value as stated in first contract.
6. $17006.88 TOIL at acting CEO rate ($54.5897 p/h for 311.54 hours as shown on time card records 28/1/2002 to 14/6/2002)
7. $3880.66 TOIL at Director of Client Services rate ($40.3605 p/h for 96.15 hours.
8. $1067.19 Additional annual leave payment for higher duties 28/1/2002 to 14/6/2002
9. $186.76 Leave loading at 17.5% for above
10. $20115.89 Difference in salary due between 13/12/2002 and 22/9/2003 based on increment payable on the 7 January 2003 less amounts received under the terms of workers' compensation and temporary disability claims received in this period.
11. $1810.43 Additional superannuation related to above.
Total claim $64,210.13."
6 The Respondent in their particulars of answer say that:-
"(a) The terms of the Applicant's employment are wholly in writing and contained in Derbarl Yerrigan Health Service Inc. Workplace Agreement dated 11 January 2002 and signed by the Applicant and the Respondent ('Workplace Agreement'); and
(b) If, (which is not admitted) the President of Derbarl Yerrigan, Mr Robin Yarran had authority to enter into a compromise with the Applicant, it is an implied term of the compromise that the compromise was conditional upon the consent and agreement of the Funds Administrator and Steering Committee. Otherwise the terms of the compromise are contained wholly in writing and contained in a letter from Mr Robin Yarran on behalf of the Respondent to the Applicant, dated 17 September 2003 ('Letter')."
7 Further the Respondent says that if Mr Yarran had the authority to enter into a compromise, the Applicant was reinstated to the position Director, Client Services. The Respondent also denies that the Applicant is due any amount under the terms of the compromise as pleaded by her in her particulars or any amount at all.
8 In relation to jurisdiction the Respondent says:-
(a) If, (which is not admitted) Mr Yarran had the authority to enter into a compromise with the Applicant, the compromise was entered into at the time when the Applicant was not an employee of the Respondent and the issue of the compromise of the actions is not an industrial matter.
(b) The issue of the compromise of the action is not a benefit to which the employee is entitled under the contract of employment.
(c) The issue of the authority of Mr Yarran to enter into compromise with the Applicant is not an industrial matter.
The Applicant's Evidence and Contentions
9 The Applicant contends that items 1 to 4, 8 and 9 are due and owing under the terms of the compromise. She says that these amounts arise out of the agreement to reinstate her on the same salary conditions with no loss of her leave and "other entitlements". In respect of the items 6 and 7 she says these amounts arise out of the specific agreement to reimburse her for overtime which was approved to be paid before her departure from Derbarl Yerrigan Health Service. In relation to items 5, 10 and 11 she says these amounts are the amounts owing as part of the agreement that the Respondent pay her the gap between the salary she would have received and the workers' compensation and other insurance monies she received whilst off work.
10 The Applicant testified that her position substantively was Director, Client Services but from 29 January 2002 until 14 June 2002, she also acted as the Respondent's Chief Executive Officer ("CEO") and the Director of Corporate Services from 29 January 2002 until 4 April 2002. The Applicant tendered a memorandum from Ms Marian Kickett, who was at the time the Respondent's CEO, dated 19 July 2002 approving payment for higher duties from 28 January 2002 to 14 June 2002. The letter does not refer to a position or a rate of pay. The Applicant testified that she was paid higher duties for acting in the position of CEO but she was paid the wrong rate of pay. She said that she was paid at the rate which had been paid to the Respondent's former Director, Mr Ted Wilkes. She said that Mr Wilkes' position was made redundant in December 2001 and a new CEO's position was created. The Applicant claims in item 1 that she should have been paid the rate of $54.5897 for each hour of the higher duties carried out by her on and between 28 January 2002 and 14 June 2002. She says that this was the rate that was agreed to by the Respondent to be paid to Ms Kickett who was permanently appointed to position of CEO on 14 June 2002. The Applicant agreed when cross-examined that Ms Kickett's contract was negotiated sometime shortly before the Applicant acted as CEO. The Applicant however, maintained in her evidence that the rate paid to Ms Kickett was struck when the position of CEO was created in December 2001. In item 2 the Applicant claims an additional amount of superannuation which is calculated on the higher duties amount set out in item 1. The Applicant says that item 8 also arises out of these higher duties because she says that when she was paid her annual leave she should have been paid at the higher rate for the period of leave that accrued from 28 January 2002 to 14 June 2002. She also claims an amount for leave loading in item 9 on the same basis.
11 The Applicant makes a claim in item 3 for the value of a mobile phone which she says was agreed when she accepted the offer of employment in January 2002. In item 4 the Applicant claims that she was due a refund for contributions made by her to entitle her to the private use of a motor vehicle owned by the Respondent. She says that $44.00 per fortnight was deducted from her pay for the use of a vehicle and that she did not realise for sometime that this deduction should not be made. In item 5 the Applicant claims an amount which she says is owing under the terms of the compromise as part of her "other entitlements" to reinstate her in the same position as if her employment had continued. She says that this amount is the value in money of the private use of a motor vehicle as if she had continued to work during that period.
12 In items 6 and 7 the Applicant claims amounts as time off in lieu ("TOIL") which she says is the same as payments of overtime for the period of time in which she acted as CEO and additional time she worked as Director, Client Services.
13 Ms Abigail Harry, the Respondent's former Treasurer and member of its Board was called as a witness on behalf of the Applicant. She testified generally to the events which lead to the Respondent's Board making a decision to reinstate the Applicant. Ms Harry testified that the Respondent's Board had approved payment to the Applicant of extra hours. Ms Harry was extensively cross-examined on the issue as to when the Board approved payment to the Applicant for TOIL. Ms Harry said that she could not recall when the Board made such a resolution but said she could recall that it was when the Applicant was acting in the Director's position that the resolution was passed. Her testimony in relation to this issue was not shaken. Ms Harry said that payment was approved on the basis the Applicant was carrying out higher duties and she had two jobs. Ms Harry was unable to say exactly when this occurred. No board minutes recording this resolution was produced by the Applicant in support of her case.
14 It was also put to Ms Harry in cross-examination that the Board vacillated in relation to whether the Applicant should be reinstated. In particular, it was put to Ms Harry, "wasn't there a resolution passed not to reinstate her", Ms Harry replied, "no, there wasn't such a resolution there was only a resolution passed to reinstate her". She recalled that there had been times when the Respondent has been under funds administration and she agreed that the Funds Administrator had to approve monies that were spent by the Respondent.
15 It is apparent from the evidence adduced from Ms Harry and the other witnesses that neither the Applicant nor the Respondent has in their possession full copies of all the board minutes during the period of time the Applicant was employed.
16 Mr Yarran also gave evidence on behalf of the Applicant. He was elected President of the Respondent on 4 August 2003. Prior to that time he was the Vice President. He said that he was unaware of the circumstances as to why the Applicant was terminated at the end of 2002 but following the Applicant's termination of employment discussions occurred within the aboriginal community about the circumstances of the termination. A decision was later made that the Respondent's advisor, Mr Haydn Lowe, should investigate the circumstances of the Applicant's termination and prepare a report for the Board. Mr Yarran testified that on the basis of the report produced by Mr Lowe, the Board made a decision that the Applicant should be reinstated and that Mr Lowe was asked to prepare the letter containing the offer of reinstatement. Although Mr Yarran had kept his own copies of board minutes during the period he was on the Board, he was unable to produce to the Commission a copy of the board minutes which record the resolution of the Board to reinstate the Applicant. Mr Yarran also questioned when cross-examined about board minutes dated 18 August 2003, whether these minutes were an accurate record of the Board meeting.
17 Mr Yarran confirmed that he signed the letter of offer dated 17 September 2003 and took it to the Applicant who signed it after making some handwritten alterations. The document was then retyped and signed by both the Applicant and Mr Yarran.
18 Mr Yarran testified that after the compromise agreement was signed he negotiated with the Applicant a contract of employment and those terms were reduced to writing and signed by him and the Applicant on 23 September 2003. He says he consulted Mr Lowe about the terms of the contract. When asked whether the Applicant received any entitlements which were outlined in the letter of compromise Mr Yarran said no, that the Steering Committee refused to authorise payment. He testified that Mr Terry Murphy and Mr Alan Phillips were on the Steering Committee and Mr Michael O'Kane was "the big boss" of the Commonwealth body that provided funds to the Respondent.
19 Mr Yarran agreed in cross-examination that he met with the Steering Committee on 18 or 19 September 2003. Mr Yarran said that Mr Phillips told him in June 2002 that he would not agree to the Applicant returning to work with the Respondent.
20 The Applicant tendered a letter dated 30 May 2003 from Mr O'Kane, State Manager of Health and Ageing, to Mr Robert Isaacs, a former President of the Respondent stating that Mr O'Kane had appointed a Funds Administrator to oversee the financial operations of the Respondent and to manage the accounts for an initial period of three months. In a letter dated 22 September 2003 from Mr O'Kane addressed to Mr Yarran, Mr O'Kane stated in relation to a meeting held on 19 September 2003, that:
"Last Friday, following a request from DYHS, I met with you in your capacity as President of DYHS, the Vice President, Mr Neville Collard, the A/CEO, Ms Sandra Harben and Mr Haydn Lowe to discuss a number of matters of which you had concern. This letter confirms the agreed upon outcomes of these discussions.
Firstly, I advised Departmental funds would not be made available for the purposes of employment of Ms Diana Downs-Stoney until it was established that such an appointment would not have any adverse effect on the organisation's workers' compensation insurance premiums. It was agreed that you would investigate this issue and provide the Department though the Steering Committee with any relevant information."
21 He said he debated the failure to pay the Applicant for sometime with the Steering Committee. In cross-examination Mr Yarran refused to concede that the Funds Administrator made decisions about how the Respondent would spend its money. He conceded however that if Mr Shane Devitt, the Funds Administrator did not approve an expenditure that payments could not be made. Mr Yarran initially agreed in cross-examination that the Steering Committee made decisions about how the Respondent could spend its money. Mr Yarran then strongly made the point that he did not agree that the Steering Committee could tell the Board how to spend its money and he told the Board that he did not agree they (the Steering Committee) could do so. He said that the Steering Committee could determine to give the Respondent funds but not to determine how it was to be spent.
22 In re-examination Mr Yarran testified that the Steering Committee eventually agreed to pay the Applicant.
23 Mr Yarran could not recall if the Respondent was under funds administration when the Applicant was first employed.
24 Mr Haydn Lowe testified that he was employed as a consultant by the Respondent in 2003. Mr Lowe has had extensive experience working with Aboriginal agencies and communities. At one time he held the position of head of the Department of Indigenous Affairs in Western Australia. At the time of giving evidence Mr Lowe was not employed by any government agency. Mr Lowe testified that there had been factionalisation within the Aboriginal community in Perth and this factionalisation was reflected within the Respondent's Board. From around May 2003 the Board had appointed an acting CEO to replace the CEO who had been terminated. He said the Respondent's Board was having difficulty convincing the funding bodies, particularly the Commonwealth that they were a viable concern and the Board felt, in a sense, disempowered by the Commonwealth's decision to place the Respondent into funds administration. Mr Lowe was asked to look into circumstances surrounding the Applicant's dismissal and he prepared a report for the Board. In a report dated 4 August 2003, Mr Lowe made the following recommendation to the Board:-
"It is recommended:
1. The Executive Committee move to re-instate Ms. Downs-Stoney as soon as reasonably possible.
2. The Acting CEO meet individually with at least some of the staff involved to discuss the situation with them (I could provide her with suggestions as to who and how, and would be prepared to participate).
3. I spend some time with Ms Downs-Stoney before she returns concerning some of the matters raised in the report and the management of the situation on her return.
4. An offer be made to Ms. Downs-Stoney to return to her original contract with no loss of salary or other entitlements; any offer should be made "without prejudice".
5. The offer includes that any reference to these matters will be expunged from her personnel file, although the CEO should archive these records confidentially in case they are ever required in the future (e.g, marked "to be read by the CEO only").
6. Ms. Downs-Stoney's medical records are returned to her immediately.
7. If the Executive Committee accepts these recommendations, a written apology would be appropriate after the matter is settles.
8. Gadens be instructed to make the above offer to Ms. Downs-Stoney through her solicitors."
25 It is apparent from the board minutes tendered in these proceedings that Mr Lowe's recommendation was not initially accepted by the Board. It is not clear from any of the minutes produced as to when Mr Lowe's recommendation was finally accepted. As set out above, the board minutes which record that the Applicant was to be offered reinstatement were not tendered and did not appear to be in the possession of either party. Mr Lowe testified that the Board had "flip-flopped" between being in favour of the Applicant's reappointment and not being in favour of reappointment. He said the Board's position seemed to be dependent upon who attended the Board meetings. He said that at the last meeting it was agreed that the Applicant would return to work and that Mr Yarran, Mr Collard and he (Mr Lowe) would be empowered to go and talk to the Applicant about the "nature of her return". He said that the Board informed him that they (Mr Lowe, Mr Yarran and Mr Collard) could proceed with the appointment if there were no significant variations from the terms the Board had agreed to offer. He said the Board had agreed that the Applicant should be returned without loss of privilege or service time in the sense that the payments she received by way of compensation or whatever would be topped up to the salary she would have received in her absence. Further she would have her leave restored, her superannuation restored, her long service leave entitlements restored and anything else that would have happened in the course of events. He said that the Applicant had mentioned to him that she would have been due an increment and it was his view she would receive an increment. When asked about the Applicant's claim for higher duties, Mr Lowe said that they had some flexibility in the way they approached the negotiation, the idea was, "if there was any legitimate financial claim that related to work that had been signed off previously, yes, that looked to be part of the deal."
26 Mr Lowe confirmed he drafted the letter of offer dated 17 September 2003. He however said that he had no further dealings with the Applicant or any Board members in relation to the contract of employment that was signed by the Applicant on 23 September 2003. He said he only saw a copy of that document some months after 17 September 2003. It then came to his attention that there were two copies of that document in existence, both of which are purported to be signed on the same date by the Applicant and Mr Yarran. One containing a three year term and the other containing a five year term. Mr Lowe testified that if he had been asked for advice, there were a number of matters in that contract of employment that he would have given advice to the Respondent not agree to.
27 Mr Lowe said he investigated the Steering Committee's issues raised in the letter dated 23 September 2003. He spoke to the risk managers and insurers and asked them about the Applicant's impact on other people and he looked at records of persons who had taken stress leave and other forms of leave. He testified that he ascertained that the incidence of insurance and other claims had dropped while the Applicant was employed and went up when she left. He imparted that information to the Commonwealth, and was told that he (Mr Lowe) had missed the point. The Commonwealth then asked whether the Applicant was fit to resume work and whether there was an increase risk of her suffering any further stress or depression or going on workers' compensation. In response the Applicant then obtained medical reports and produced those to the Board.
The Applicant's Evidence in Relation to Her Salary Claim
28 In items 10 and 11 the Applicant claims the difference in salary between 13 December 2002 and 22 September 2003, less amounts received as workers' compensation weekly payments and temporary disability payments received in that period. The Applicant says that pursuant to her workplace agreement signed by her in January 2002 ("the workplace agreement") that she should have received an increment on 7 January 2003.
29 Clause 7(a) of the workplace agreement provides "Your taxable salary on commencement shall be $63,253 per annum. Your salary will be paid fortnightly in arrears, by direct deposit into a bank account nominated by you." Clause 7(b) provides, "After twelve months continuous service both parties to enter into negotiations for a review of salary and conditions. Any increase will be subject to a satisfactory annual performance appraisal." The Applicant testified a performance appraisal was conducted after her re-instatement in September 2003.
30 It is common ground that the Applicant received a gross amount of $17,813.96 for disability payments between 18 February 2003 until 24 September 2003. The Applicant also received the following entitlements from QBE as workers' compensation:-
Weekly compensation $23,858.32 Paid by QBE during the period from 19 December 2002 until 13 June 2003.
Medical expenses $1,361.20
Rehabilitation expenses $303.34
HIC contribution $4,500.00
Redemption $40,500.00 (Exhibit 2)
31 Item 11 is an amount the Applicant says is payable for superannuation calculated on the amount she says is due and owing under item 10.
The Respondent's Evidence
32 The only evidence the Respondent produced was copies of the minutes which were available from the year 2002. The Respondent says that there was no resolution passed in the year 2002 in respect of payments being made to the Applicant in respect of TOIL. The Respondent's Counsel was unable to assure the Commission that the minutes were a complete record of all the meetings the Board held in year 2002.
Respondent's Submissions
33 The Respondent contends the first matter the Commission must determine is whether the Commission has jurisdiction to make orders in respect of the compromise and if such jurisdiction is found, whether the Commission can and should make orders in terms of the compromise in this case. In written submissions filed by the Respondent, the Respondent says the Commission does not have jurisdiction to make orders in respect of matters set out in the compromise because under s 23A of the Act, the Commission cannot make orders until it makes a determination that a dismissal of an employee was harsh, oppressive or unfair.
34 In relation to the issue whether the Commission can or should make orders in terms of the compromise the Respondent says the decision of Thompson v Bituminous Products Pty Ltd (2002) 82 WAIG 1309, establishes that if there is a substantial dispute as to the terms of the agreement or whether the agreement was validly made the Commission should not make orders in terms of a compromise agreement.
35 As set out in paragraph 8 of these reasons for decision the Respondent also argues that the compromise is outside the employment relationship and thus does not constitute an industrial matter. The Respondent says that the compromise arose after the employment relationship had ceased and it did not arise out of the employment contract.
36 The Respondent says that even if the Commission finds that it is within jurisdiction to enforce the compromise that the compromise was not validly made. The Respondent says that the compromise agreement was not validly made because Mr Yarran was not authorised to sign the letter of compromise. Further it says the Applicant was not entitled to rely on the assumption that Mr Yarran was authorised because she knew or suspected the assumption to be incorrect. Alternatively, the Respondent says if, (which is not admitted) Mr Yarran had authority to enter into a compromise with the Applicant, it is an implied term of the compromise that the compromise was conditional upon the consent and agreement of the Funds Administrator and Steering Committee. In relation to the Respondent's authority to contract, the Respondent says:-
(a) The Applicant knew that the Respondent would not be able to reinstate her without the express authorisation of the Respondent's Board, funding body and Steering Committee.
(b) The Respondent is an incorporated association under the Associations Incorporations Act 1987, and can enter into a contract by any person acting under its express or implied authority.
(c) The Respondent as an incorporated association is subject to the Corporations Act 2001 (Cth). Section 28(4) of the Corporations Act provides that a person is not entitled to make an assumption regarding the authority of an officer if at the time of the dealing that person knew or suspected that the assumption was incorrect.
37 Further the Respondent says the Applicant had been employed by the Respondent for approximately 12 months and had been involved in the management of the Respondent and knew that:-
(a) the Respondent's Board needed to authorise her reinstatement and any terms of the reinstatement;
(b) the Respondent could not make any payments without the agreement of the Funds Administrator and the Steering Committee;
(c) the Respondent could not incur any new liabilities without the agreement of the Funds Administrator and the Steering Committee; and
(d) the Respondent's Board therefore needed the agreement of the Funds Administrator and the Steering Committee before it could authorise her reinstatement and any terms of the reinstatement.
38 In relation to the Respondent's argument that it is an implied term of the reinstatement, it says that the agreement was conditional upon the consent of the Funds Administrator and the Steering Committee because:-
(a) the term is reasonable and equitable;
(b) the contract is unworkable without the term being implied;
(c) the term is so obvious it goes without saying;
(d) the term is capable of clear expression and certain in its operation; and
(e) the term is consistent with the other terms of the contract.
(BP Refinery (Westernport) Pty Ltd v Shire of Hasting (1977) 180 CLR 266 at 283) Further, a term should be implied by reference to the imputed intention of the parties if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case (Hawkins v Clayton (1988) 164 CLR 539 per Deane J at 573).
39 The Respondent also says that even if the Commission is of the view that it is able as a matter of jurisdiction and as a matter of law to make an order in terms of the compromise that there are no sums of money due and owing under the terms of the contract. In particular the term that the Applicant be reinstated to position of Director, Client Services was satisfied and that the other amounts claimed as denied contractual benefits pursuant to the agreement to compromise have no merit in law or in fact.
The Applicant's Submissions
40 The Applicant says that it was not a precondition to the Respondent entering into an agreement to reinstate her that the Funds Administrator and the Steering Committee consent to the arrangement. In particular she says that the Funds Administrator and the Steering Committee imposed two conditions on paying her and both of those conditions were satisfied after her reinstatement. The Applicant says that when she was first appointed in January 2002, the Respondent was in funds administration at that time and no approval was required for her appointment from the Funds Administrator or the Steering Committee.
41 The Applicant also says that the Commission does have power to make an order in terms of the compromise and in particular she says that the decision of the Commission in MacLeod v Paulownia Trees Pty Ltd (1997) 78 WAIG 1057 should be followed. In that case, Commissioner Beech found that the Commission does have power to make an order in terms of an agreement to compromise a claim for unfair dismissal, as to do so, is entirely consistent with the objects of the Act, two of those being to encourage and provide the means for conciliation with a view to an amicable agreement, and to provide for the observance and enforcement of agreements made for the prevention and settlement of industrial disputes.
Legal Principles - Jurisdiction
42 In Thompson v Bituminous Products Pty Ltd (op cit) the issue before the Commission in that case is whether parties reached an agreement to compromise a claim under s 29B(1) of the Act. In that case there was a dispute as to whether an offer was made to compromise all claims including for a claim of under payment of award entitlements claimed on behalf of the Applicant by the Construction, Forestry, Mining and Energy Union in the Industrial Magistrates' Court. I observed in paragraph [12].
"Although I have concluded that the Commission does have the power to hear and make a declaration as to whether the parties have, by agreement, compromised an application and to make orders to enforce a compromise agreement, it is my view that the Commission should not exercise its power to hear and determine whether this application has in fact been compromised by an agreement between the parties. The reason I have reached this view is that it is clear that the remedy the Applicant seeks is in the nature of a summary judgement or relief. In an application for enforcement of a compromised agreement in the Supreme Court in Chesterton International (WA) Pty Ltd v Interchange Holdings Pty Ltd unreported; SCt of WA; del. 21 February 1995 Heenan J at page 7 observed:
'Bearing in mind that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried (see Fancourt and Another v Mercantile Credits Ltd (1983) 48 ALR 1 at 10) I am satisfied that this is a case in which the power should be exercised. On the material before me it is clear not only that the Court has the power in these proceedings to enforce an agreement compromising the action but also that the agreement in question is binding upon the first defendant.'
Further in Chesterton International (WA) Pty Ltd v Interchange Holdings Pty Ltd (op cit) Heenan J, at page 5, observed that if there was a substantial dispute as to the terms of the agreement in question the summary procedure would be inappropriate. Murray J in Dalmation Nominees Pty Ltd v Marinovich (op cit) made similar observations at page 14 of his reasons for decision. In my view the order sought by the Applicant is an order enforcing the agreement. In Roberts v Gippsland Agricultural Earthmoving Contracting Co Pty Ltd [1956] VLR 555 at 561 Smith J observed:
'And it is to be observed, at the outset, that what we are concerned with here is not the class of case in which, following upon the making of an agreement for the compromising of an action, an order has been pronounced with the real or apparent consent of both parties, and one of them then says that the order should not be drawn up or should be set aside. What we are concerned with is the class of case in which, following upon the making of such an agreement, and at a stage when no order has been pronounced, one of the parties comes to Court, with the other opposing, and asks the Court to make an order to which, by the agreement, the other party undertook to give his consent, or an order directing the other party to pay money or do some other act which, by the agreement, he undertook to do. In other words it is the class of case in which a party to an action comes to the Court seeking what is, in effect, an order enforcing the agreement specifically.'
Smith J dealt with a number of rules of practice in relation to enforcement of compromise action and summary procedure at page 562-563. At 563 he observed that it would not be appropriate to make orders in terms of an agreement if there was a:
'(d) …substantial question to be determined as to what were the terms of the agreement, or as to whether it was valid or specifically enforceable, as for example where a substantial case was put forward of material mistake or of other circumstances such as would afford a defence to a suit for specific performance, a party would ordinarily be left to proceed by separate bill so that the matters raised might be fully investigated: see Askew v Millington (supra); Richardson v Eyton (supra); Edwards on Compromises, p. 186; Fry on Specific Performance (6th ed.), p.720.' "
43 In Thompson v Bituminous Products Pty Ltd (op cit) it was conceded by the parties that the Commission does have power in an appropriate case to make orders in terms of a compromise agreement. In this matter the Respondent makes no such concession and says that the compromise agreement constitutes a separate contract which cannot be dealt with by the Commission under s 29(1)(b) of the Act.
44 The Commission is not a superior court of record, it has no inherent jurisdiction, and its jurisdiction is limited to that explicitly provided by the Act (Robe River Iron Associates v Federated Engine Drivers and Firemen's Union of Workers' of Western Australia (1987) 67 WAIG 315; Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers', Western Australian Branch (1992) 72 WAIG 1499). The Commission's powers are circumscribed by statute. In respect of an application under s 29, powers to make orders are confined to the express provisions of the Act (see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26). The Commission does have implied powers that arise by necessary implication out of the effect of exercise of a jurisdiction which is expressly conferred (Grassby v The Queen (1989) 168 CLR 1 at 16-17 per Dawson J). Pursuant to s 12(1) of the Act the Commission is a Court of record. It exercises judicial power when hearing and determining claims by an employee under s 29(1)(b). As its jurisdiction is limited it is an inferior court of record. Dawson J, in Grassby v The Queen (1989) 168 CLR 1 at 16, delivered the leading judgment of the court in which he discussed the limits of the implied jurisdiction of an inferior court. Dawson J, first referred to Menzies J observations in R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7, that implied jurisdiction requires no authorising provision, and Dawson J then went on to say at 16 to 17:
"Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal, vol. 57 (1947) 83, at p. 85, cited by Jacob, 'The Inherent Jurisdiction of the Court', Current Legal Problems, vol. 23 (1970) 23, at p. 27. But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.
…
It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'."
45 In this matter the Commission has before it an application under s 29(1)(b)(i) and (ii). Despite the fact the Applicant was reinstated to her position as Director, Client Services on 23 September 2003, the application was not discontinued. The Commission cannot in this case make orders expressly under s 23A in relation to the application under s 29(1)(b)(i) because as the Respondent points out the Commission may only make an order under the section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair. Section 23A has no application to a contractual benefit claim under s 29(1)(b)(ii). This matter has been the subject of conciliation and arbitration under ss 23(1) and 32 of the Act. The Commission has no express power under ss 23(1), 23A or 32 to make an order in terms of a compromise agreement. Although there is no express power vested in the Commission to make an order in terms of a compromise agreement I am of the view that the Commission has inherent power to do so in relation to this matter. The reasons why I have reached this conclusion are as follows.
46 This application was referred for conciliation and for arbitration under ss 23(1) and 32 of the Act. Section 23(1) provides:
"(1) Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter."
47 Section 32(1), (2) and (7) provides:
"(1) Where an industrial matter has been referred to the Commission the Commission shall, unless it is satisfied that the resolution of the matter would not be assisted by so doing, endeavour to resolve the matter by conciliation.
(2) In endeavouring to resolve an industrial matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to reach an agreement on terms for the resolution of the matter.
(7) Where a matter is decided by arbitration the Commission shall endeavour to ensure that the matter is resolved on terms that could reasonably have been agreed between the parties in the first instance or by conciliation."
48 Section 32A of the Act provides that conciliation and arbitration functions may be exercised at anytime and are not limited by any other provision of the Act.
49 Pursuant to s 7(1a) of the Act the Commission still has before it an industrial matter. Section 7(1a) provides:
"(1a) A matter relating to — 
(a) the dismissal of an employee by an employer; or
(b) the refusal or failure of an employer to allow an employee a benefit under his contract of service,
is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended."
50 As Beech C, observed in MacLeod v Paulownia Trees (op sit), s 6(b) and (c) of the Act are consistent with making order in terms of a compromise agreement. Section 6(b) and (c) provide it is a principal object of the Act:
"(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;
(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;"
51 For a power to be implied, it must be necessary for the effective exercise of the jurisdiction. What is "necessary" requires identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies provided for in the Act (see Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 at 452; [51] per Gaudron, Gummow and Callinan JJ).
52 I am of the view that the Commission has power to make orders in terms of a compromise agreement providing that the orders it makes could otherwise be made expressly under ss 23(1), 23A and 32 of the Act. The power to do so is implied in the Act when regard is had to objects in s 6(b) and (c) as the grant of power in ss 23(1), 32 and 32A carries with everything that is necessary for the effective exercise of the power.
53 In the context of claims made under s 29(1)(b) it is reasonably necessary or legally ancillary to the proper object of accomplishing settlement of industrial disputes that parties be held to their bargains and the means for holding them to their bargains be carried out with the maximum of legal form and technically. The implied power does not extend to making orders that are not within the scope of the original application or to make orders in terms of a compromise that could not have been made following an arbitration of the merits of the application in the absence of any compromise agreement. For example the Commission could not make an order requiring the Respondent to pay the Applicant's legal costs as to do so is contrary to s 27(1)(c) of the Act.
Should the Commission Make Orders in Terms of the Compromise
54 An unimpeached compromise represents the end of the dispute or disputes from which it arose Prudential Assurance Co Ltd v McBains Cooper [2000] 1 WLR 2000 at 2005, CA.
55 In this matter the Respondent says it should not be bound by the compromise agreement entered into on 17 September 2003 as the Board did not have the authority to enter into the agreement with the Applicant because it did not obtain the approval of the Funds Administrator or the Steering Committee. The Respondent led no evidence on this issue and relied upon the evidence given in the Applicant's case.
56 Having considered that evidence I am not satisfied the Respondent can make out a case that a substantial question or dispute is raised in relation to this issue that should be tried in a separate case. In my view a substantial question or dispute must be one that has merit. There is no reliable evidence before this Commission that the Board of the Respondent was required to seek approval of the Steering Committee or the Funds Administrator prior to offering to compromise the Applicant's claim. Ms Harry gave uncontradicted evidence that at the time of the Applicant's appointment as Director, Client Services in January 2002, the Respondent was under funds administration and the Respondent did not have to obtain approval for the Applicant's appointment from the Funds Administrator or the Steering Committee. Further, Ms Harry confirmed that the Board was able to employ other persons without obtaining approval of the Funds Administrator and that the Funds Administrator had not refused to pay any other employee of the Respondent. The only document produced in these proceedings that relates to this issue is a copy of the letter from Mr O'Kane from the Department of Health and Ageing. Whether he was on the Steering Committee is not clear from his letter or the evidence given in these proceedings. All the letter says is that funds would not be made available for the Applicant's employment until certain information was provided. It is apparent from the evidence that the required information was provided and after a period of time following the Applicant's reinstatement funds were approved to her for the work carried out by her after 23 September 2003 and she was paid her salary.
57 As to the Respondent's contentions set out in paragraph 37 of these reasons, the Applicant did not give evidence in chief about this matter and nor were these contentions raised with her in cross-examination. As to the Respondent's contention that it should be implied in the compromise agreement that the Board required the approval of the Funds Administrator or the Steering Committee to enter into the compromise agreement, I do not agree that such a condition should be implied at law. A term will not be implied if it is not reasonable to do so. At the highest if it accepted that the letter written by Mr O'Kane, dated 22 September 2003, is a letter setting out the requirements of the Steering Committee, it follows that the Steering Committee simply imposed conditions (namely the requirement to produce evidence of the Applicant's fitness to work and the likelihood of re-injury) on the agreement to reinstate. At law these conditions can be said to be conditions subsequent on the performance of the agreement to compromise which was accepted by both parties. In such a case it cannot be said that it is necessary for the reasonable or effective operation of the contract to imply the term sought by the Respondent. Further the term sought to be implied is inconsistent with the conditions subsequent.
Credibility
58 I prefer the evidence given by Mr Lowe to the evidence given by the Applicant, Ms Harry and Mr Yarran where their evidence departs from the evidence given by Mr Lowe. Mr Lowe is an independent witness who has no interest in the outcome of these proceedings. Mr Lowe's recollection of events is consistent and his evidence was not shaken in cross-examination. That does not mean that I reject the evidence given by Ms Harry or Mr Yarran. I found both of them to be honest witnesses. However, their recollection of some events is in some aspects poor. I found that Ms Harry's recollection of the timing of events better that Mr Yarran's.
59 I accept the Applicant's evidence where her evidence is corroborated by the evidence by the other witnesses or by documentary evidence.
What are the Terms of the Compromise Agreement
60 The evidence establishes that the terms of the agreement are set out in the letters dated 17 September 2003. The contract of employment signed by the Applicant and Mr Yarran on 23 September 2003 do not form part of the compromise other than to evidence that the Applicant was reinstated to her position as Director, Client Services. It may be the case that the contract whether it be for a five or three year term contains conditions which are superior and constitute terms beyond what was authorised by the Board when making a decision to reinstate her. The veracity of that document in my view is not relevant to these proceedings.
61 The terms of the compromise agreement are in my view clear and unambiguous. Those are:
(a) The Applicant is to be reinstated to her position as Director, Client Services; and
(b) The Applicant is to return at the same salary conditions and with no loss of leave and other entitlements. The Applicant is to be repaid a sum of money equal to the gap between the salary to which she would have been entitled during her absence and the salary monies received from workers' compensation and other insurers. These conditions mean the Applicant is to be treated as if her employment was continuous from January 2002, for the purposes of annual leave, sick leave, long service leave, bereavement leave and superannuation. Further the Respondent is obliged to pay the Applicant the same salary and conditions that she was previously engaged in her position as Director, Client Services. This condition was subject to the condition subsequently imposed by the Steering Committee that the Applicant's appointment would not have an adverse affect on the Respondent's workers' compensation insurance premiums. This condition was satisfied. I do not accept these terms entitled the Applicant to be paid an increment from January 2003 as cl 7(b) of the workplace agreement simply required the Applicant and Respondent to enter into negotiations for a review of salary and conditions after 12 months continuous service. Further, any increase was subject to a satisfactory annual performance appraisal. Until these conditions were met the Applicant was not entitled to an increase. This performance appraisal did not occur until after the Applicant was reinstated.
Further, I do not accept the Applicant is entitled to claim a sum for loss of private use of a motor vehicle and mobile telephone owned by the Respondent, from the time of her dismissal until reinstated, as I am not satisfied that the Applicant was entitled to the private use of a motor vehicle or a mobile telephone. Her workplace agreement states in cl 16(c) that "you will be provided with a mobile phone for business use". Her workplace agreement clearly also states use of the Respondent's mobile telephone and vehicle is for business purposes only. The Applicant's workplace agreement does not make provision for private use of a motor vehicle. In cross-examination the Applicant conceded that she had signed a form on 11 February 2002 to authorise the Respondent to deduct $44.00 per fortnight as payment for the use of a Derbarl Yerrigan Health Service vehicle outside business hours inclusive of the use of the vehicle to travel to and from the place of employment. In the particulars, she says that this is the pro-rated package value as stated in the first contract. It appears to be common ground that the first contract is, as I understand it, a reference to the workplace agreement. That contract states she was entitled to use her own private vehicle for business purposes under the terms of the organisation's vehicle use policy or alternatively a Derbarl Yerrigan Health Service pool vehicle for the purposes of performing duties under the contract during normal working hours. Clause 16 of the workplace agreement also provides that if she uses her own vehicle she will be paid mileage in accordance with the current Derbarl Yerrigan Health Service Motor Vehicle Policy. The Applicant testified that her claim is justified on the basis that because the Respondent cannot provide retrospective use of a vehicle that she is claiming the value of that private use. The Applicant says that when her position of Director, Client Services was advertised by the Respondent it stated that there was a right to the private use of a vehicle and that as the advertisement stated that she had that right and she should not have been required to pay for the private use of a motor vehicle. The Applicant however did not produce a copy to the Commission of the advertisement in support of her claim.
The Applicant is however entitled to receive an amount between the amount she would have received in the period she was off work accessed at the rate of $63,253.00 per annum and the amounts she received as salary from workers' compensation and other insurers if those late amounts are less than the former. The Applicant was off work for 40 weeks (being the period from 13 December 2002 until 23 September 2003). If the Applicant was employed for that period she would have been paid $48,656.15 as salary. The applicant was paid $23,858.32 in weekly payments of workers' compensation and $17,813.96 as disability payments. These amounts total $41,672.28. The Applicant concedes the amounts she received as weekly payment of compensation and as disability payments should be deducted from the amount she would have received as salary had she not been dismissed. The Applicant was also paid $40,500 as a lump sum in redemption of weekly payments of workers' compensation under ss 67 and 76 of the Workers' Compensation and Rehabilitation Act 1981. She says this amount should not be taken into account when determining if she is owed any amount by way of salary under the terms of the compromise agreement.
Section 67(1) of the Workers' Compensation and Rehabilitation Act provides:
"(1) Where weekly payments for a permanent total or permanent partial incapacity resulting from a disability other than mesothelioma have continued for not less than 6 months, the liability for the incapacity is to be redeemed by the payment of a lump sum if —
(a) the worker and the employer agree to the redemption and on the amount of the lump sum; and
(b) a memorandum of the agreement is registered under Division 7."
Section 76(1) of the Workers' Compensation and Rehabilitation Act provides:
"(1) Subject to section 92(h), where the amount of compensation under this Act has been ascertained, or any weekly payment varied, or any other matter decided under this Act by agreement, or any agreement, whether purporting to be made under this Act or not, has been entered into whereby a worker agrees to compound any claim or right to compensation under this Act, a memorandum thereof shall be sent, in manner prescribed, by any party interested, to the Director, who, subject to subsection (2a), shall, on being satisfied as to its genuineness, and, where the agreement provides for the payment of compensation pursuant to an election under section 24 or 24A, as to the adequacy of the amount thereof, record such memorandum in a special register without fee, and thereupon the memorandum shall for all purposes be enforceable as an award or order made by the Directorate."
As to the amount of $40,500 the Applicant received as a lump sum, she says this was a sum received by her as a settlement of her workers' compensation and common law claim against the Respondent. The evidence does not however, support her contention. Exhibit 2 states the amount of $40,500 was paid in relation to her workers' compensation claim as "redemption". Under the provisions of the Workers' Compensation and Rehabilitation Act, workers and employers can only enter into an agreement to redeem weekly payments of compensation and other entitlements under the Workers' Compensation and Rehabilitation Act and not any claim at common law.
Under s 18 of the Workers' Compensation and Rehabilitation Act, if a disability of a worker occurs, the employer shall subject to the Workers' Compensation and Rehabilitation Act be liable to pay compensation under schedule 1 of the Act. Under cl 7 of schedule 1 the Applicant was entitled to weekly payments equal to her weekly earnings calculated and varied in accordance with schedule 1. She was also entitled in addition to weekly payments of compensation medical expenses under cl 17 of schedule 1. Under s 76(1) of the Workers' Compensation and Rehabilitation Act only weekly payments of compensation and other entitlements owing under the Workers' Compensation and Rehabilitation Act are part of a redemption agreement.
The question then is whether the amount received by the Applicant as redemption can be said to be "salaried monies" received from workers' compensation. In my view, clearly part of that money is capable of being characterised as "salaried monies" as the statutory framework of a redemption payment contemplates redemption of entitlements to weekly payments of compensation. The Applicant conceded in written submissions filed on 24 March 2004 that there is no evidence before the Commission of the basis of calculation of the amount for "redemption". The quantum of the redemption amount (if any) that can be characterised as "salaried monies" is not a matter the Commission can speculate. However, the Applicant bears the burden of proving that none of the amount of $40,500 or an amount less than $6,983 paid as redemption was for weekly payments of compensation so as to entitle her to payment of an amount of $6,983 or a lesser amount (being the difference between the amount she would have been paid as salary and the amount she received as weekly payments of compensation and disability payment she received between 13 December 2002 and 23 September 2003). In my view she has failed to prove that to be the case.
Notwithstanding my views set out above the amount paid as redemption could be capable of being discounted if s 183 of the Workers' Compensation and Rehabilitation Act applies.
Section 183 provides:
"(1) A payment of compensation, or a sum paid by way of redemption thereof, is not capable of being assigned, charged or attached, and shall not pass to another person by operation of the law, nor shall any claim be set off against such payment or sum, except in respect of voluntary advances of future compensation made by an employer or insurer with the approval of the Directorate.
(2) A person who purports or agrees to do anything the doing of which is prevented by subsection (1) commits an offence and is liable to a fine of $5 000."
The Respondent submits that the purpose of s 183 is to prevent a payment of compensation, or a sum paid by way of redemption thereof, ("prescribed payments") being redirected or otherwise applied such that the worker is effectively denied the benefit of it.
The classes of transactions which are prohibited have in common the effect of ensuring that all or some of the prescribed payments do not reach the worker.
In general terms, the Respondent submits that since:
(a) The Applicant has already, and, at the time of the Agreement, had already, received all the prescribed payments to which she was entitled; and
(b) The Agreement does not propose that the Applicant should pay any of these monies received to the Respondent or to any other party;
The Agreement does not contravene s 183 of the Workers' Compensation and Rehabilitation Act.
Clearly the agreement to compromise the Applicant's claim cannot be described at law as a charge, attachment or a conveyance by operation of law of a sum paid by way of redemption within the meaning of s 183. The agreement to compromise was entered into by a voluntary act by the Applicant. Can the agreement be described as an assignment or a set-off? The answer to that question is, in my view, no. An assignment is to transfer to another all of part of one's property, interest or rights (see Blacks Law Dictionary). The agreement to compromise does not propose to transfer of the amounts paid to the Applicant as compensation or redemption. Blacks Law Dictionary defines a set off as:
"A counter-claim demand which defendant holds against plaintiff, arising out of a transaction extrinsic of the plaintiff's cause of action; and
Remedy employed by defendant to discharge or reduce plaintiff's demand by an opposite one arising from transaction which is extrinsic to plaintiff's cause of action."
The Respondent submits that several elements of a set-off are absent from the arrangement proposed in the Agreement. I agree with their submission. Firstly, there is nothing in the agreement to compromise which has the character of a demand which the defendant (Respondent) has against the plaintiff (Applicant). The Respondent has not claimed, in the agreement to compromise, that the Applicant owes any monies to them. Secondly, there is nothing in the agreement to compromise which could be said to be extrinsic to the plaintiff (Applicant's) cause of action. The Applicant's claim against the Respondent arises from the termination of their relationship as employer and employee. The Agreement arises from the same circumstances.
For these reasons, I am of the view, the Applicant is unable to prove that she is entitled to amounts in items 10 and 11 as she is unable to prove that the salaried monies she received from workers' compensation and her disability insurer were less than the money she would have received had she not been dismissed.
(c) The Applicant is entitled to be paid for any overtime approved before her departure from Derbarl Yerrigan Health Service. This term requires the Respondent to pay an amount approved as overtime provided that approval was given prior to the Applicant's termination of employment. The Applicant says the Respondent approved payment to her for extra hours worked as CEO and Director, Client Services during the period from 28 January 2002 until 14 June 2002. She testified (page 12 of the transcript) during the period of time she was carrying out the duties of three positions she was working extraordinarily long hours and the Board approved payment of the extra hours work as she was unable to take any time off. The Applicant's workplace agreement in cl 13.3 states, "As a minimum your ordinary hours of work shall be 37.5 per week.". Further 13.3(c) provides "It would be expected, as a Senior Manager, that hours worked in excess of 37.5 hours per week would be without the payment of overtime.". Clause 13.3(d) states, "In exceptional circumstances, where significant longer hours have been work [sic] TOIL can be negotiated with your immediate Manager." It was put to the Applicant in cross-examination that the workplace agreement only entitled the Applicant to time off in lieu (TOIL) and did not provide for entitlement or payment. It is clear from the express terms of the workplace agreement that all of the terms of the workplace agreement did not apply to the Applicant's duties as acting CEO. The Applicant testified that the Respondent had a policy of paying TOIL. Further, the Applicant says that there was a Board motion to approve payment to her for TOIL, which was passed prior to the termination of her employment in December 2002. It was put to the Applicant in cross-examination that the Respondent's policy in relation to payment of TOIL is that it does not pay TOIL out. However, the Respondent did not produce the policy in support of this proposition nor did the Applicant produce a copy of a Board minute in support of her claim that additional hours of work performed by her was to be paid out. However, Ms Harry, a former Treasurer of the Respondent testified that the Board had approved payment to the Applicant. Whilst Ms Harry gave vague evidence on many issues, she did not depart from her testimony that the Board approved payment of extra hours worked by the Applicant whilst she was acting as the CEO. Although the Respondent tendered into evidence copies of all Board minutes it says it has in its possession which record Board meetings between January 2001 and end of December 2002, I am not satisfied that bundle of minutes contains a complete record of Board resolutions in that period.
62 In relation to the Applicant's particulars of claim of monies due and owing under the terms of the compromise I make the following findings:
(a) I am not satisfied the amounts claimed in items 1 and 2 of claims arising out of higher duties performed between January 2002 until June 2002 form part of the terms of compromise. Whilst this amount is within the ambit of the claim for contractual benefits set out in the application, they were not amounts agreed to in the compromise. For the reasons set out above I find that any claim in respect of these amounts have been extinguished by the compromise agreement.
(b) For the reason set out above I am not satisfied that item 3 and 5 (claims for compensation for loss of the private use of a mobile telephone and motor vehicle) are amounts due and owing under the terms of the compromise agreement. Further, for the reasons set out above these claims have no merit.
(c) It was not a term of the compromise agreement that the Applicant be reimbursed an amount for vehicle deductions in item 4. In any event this claim has no merit (see Exhibit 1).
(d) I find that the Applicant does have an entitlement in respect of items 6 and 7 (payment for TOIL) providing that she can produce evidence of the hours worked. I am not satisfied that she should be paid the rate which was paid to Ms Kickett. I will hear further evidence in relation to these items.
(e) An entitlement to items 8 and 9 (claims for payment of annual leave and leave loading at the CEO's rate) do not form part of the terms of compromise. Further these items have no merit. The claim relates to a period between January 2002 and June 2002. The Applicant testified she took no leave in that period. It is a well established principle at common law that the rate annual leave is paid is the rate the employee would have received at the time the leave is taken. This principle is enshrined in s 18 of the Minimum Conditions of Employment Act 1993.
(f) In relation to items 10 and 11 (the claim for salary and additional superannuation for the period from 13 December 2002 and 22 September 2002, the Applicant has failed to prove that the amounts she was paid by the Respondent's workers' compensation insurer and her disability insurer were less than the amount she would have received had she been continuously employed by the Respondent between 13 December 2002 until 23 September 2003.