WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2019 WAIRC 00262

DELIVERED : Thursday, 30 May 2019

FILE NO. : U 146 OF 2018

Applicant

AND

East Metropolitan Health Service

Respondent

CatchWords : Industrial law – Unfair dismissal – Compromise agreement reached by parties – Maximum compensation already paid to applicant – Reinstatement or re-employment not practicable - Not in the public interest to hear and determine the application

Legislation : Section 23A, s 23A(8) and s 27(1)(a) of the Industrial Relations Act 1979 (WA)     

Result : Application dismissed

Representation:

Applicant : In person

Respondent :  Ms J van den Herik (as agent)

Cases referred to in reasons:

Green v Rozen and others (1955) 2 All ER 797

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

Prudential Assurance Co. Ltd. V McBains Cooper [2000] 1 WLR 2000

Reasons for Decision

1         Mr Richard Adam worked as a casual cleaner and occasionally an orderly for East Metropolitan Health Service (EMHS). He was employed from around March 2017 until sometime in 2018. During his employment, Mr Adam was the subject of two disciplinary processes. One of those involved an investigation in 2018.

2         Mr Adam says his employment ended on 11 July 2018 when EMHS asked him not to return to work and paid out the remainder of his rostered shifts. EMHS says Mr Adam’s employment ended on 20 December 2018, when the disciplinary investigation was completed and EMHS decided not to offer him any further shifts.

3         Mr Adam referred this application U 146 of 2018 to the Commission on 24 November 2018, alleging he was unfairly dismissed. At that time, the disciplinary investigation was ongoing.

4         Through conciliation the parties reached an agreement to compromise Mr Adam’s unfair dismissal application. Their compromise agreement was recorded in a deed of settlement signed by Mr Adam and the Chief Executive of EMHS.

5         Mr Adam now asks the Commission to ‘null and void the deed of settlement’.  He does not want to be reinstated or re-employed. EMHS says Mr Adam’s application should be dismissed because the parties reached a compromise agreement and, in any event, there is no order the Commission could make if the matter were heard and determined.

6         Because it is not in dispute that the parties reached a compromise agreement and EMHS paid Mr Adam the equivalent of six months’ wages, this matter was listed to hear from the parties about whether Mr Adam’s unfair dismissal application should be dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act).

What must I decide?

7         I must decide whether this application should be dismissed under s 27(1)(a) of the IR Act.

Conciliation process

8         The Commission convened two conciliation conferences in this application. At the second conference on 10 April 2019, EMHS provided Mr Adam with a deed of settlement containing an agreement to compromise application U 146 of 2018 and resolve all matters between the parties (Settlement Deed). Mr Adam signed the Settlement Deed at the conference on 10 April 2019. The Settlement Deed was then executed by the Chief Executive of EMHS and was provided to Mr Adam and the Commission by email on 12 April 2019.

9         As part of the compromise agreement, EMHS agreed to provide Mr Adam a settlement sum within 14 days of the execution of the Settlement Deed by the parties.

10      On 24 April 2019, being the 14th day after he signed the Settlement Deed, Mr Adam contacted the Commission to inform it that he had not yet received the settlement sum. My Associate immediately contacted EMHS’ representative, who informed my Associate that the settlement sum had not yet been paid but would be before the end of that day.

11      At 3:57pm on that same day, EMHS provided Mr Adam and the Commission by email with a receipt confirming the settlement sum had been paid to Mr Adam.

12      On 8 May 2019, Mr Adam sent two emails to my Associate stating that the Settlement Deed was null and void because the money was not received in his bank account until the 15th day.  Mr Adam requested I provide him with a document ‘null and voiding the signed deed.’

13      My Associate responded to Mr Adam by letter on 9 May 2019, explaining it is not the role of the Commission to provide such documents, and that this matter would be set down for a hearing to determine whether this application should be dismissed under s 27(1)(a) of the IR Act.

Consideration

14      Several material facts are not in dispute.  First, the parties reached an agreement to compromise Mr Adam’s unfair dismissal application at the conciliation conference on 10 April 2019.  Second, on 24 April 2019 EMHS paid Mr Adam the settlement sum of $22,927.00 (net) as set out in the Settlement Deed.  I accept that the settlement sum took one day to appear in Mr Adam’s bank account.

15      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, 2005.  In this application, the compromise agreement reached by the parties on 10 April 2019 and recorded in the Settlement Deed has overtaken Mr Adam’s unfair dismissal application: Maurice Bradbury v Jos van Baren, John Denwick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927 (Bradbury); Green v Rozen and others (1955) 2 All ER 797.   Now before the Commission is the compromise agreement in settlement of Mr Adam’s unfair dismissal application, not the unfair dismissal application itself.

16      The Full Bench in Bradbury stated ‘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.’ (2928)

17      Given the unimpeached compromise agreement and the payment made by EMHS, I am satisfied that further proceedings are not necessary or desirable in the public interest: s 27(1)(a) of the IR Act. 

18      But even if I am wrong and the parties have not reached a compromise agreement, I consider it would not be in the public interest to hear Mr Adam’s unfair dismissal application. 

19      Mr Adam is mainly concerned about what he sees as non-compliance with the Settlement Deed.  He says EMHS has not complied with the Settlement Deed because:

1. the settlement sum appeared in his bank account 15 days after Mr Adam signed the Settlement Deed; and
2. EMHS sent his final payslip to Armadale Hospital, where it went missing, instead of sending it to his home address.

20      Mr Adam seeks an order that the Settlement Deed be declared void and set aside because EMHS has not complied with the Settlement Deed.  In the circumstances of this matter, that is not an order the Commission could make under s 23A of the IR Act. 

21      It is not in dispute, and I find, that EMHS has paid Mr Adam the equivalent of six months’ wages.   If the matter were heard and Mr Adam were successful at a hearing, this is the maximum amount of compensation the Commission could order under s 23A(8) of the IR Act.  Further, I consider that reinstatement or re-employment should not be ordered in this case.  I say that for several reasons.  First, Mr Adam does not seek reinstatement.  EMHS argues that reinstatement is impracticable because the relationship between Mr Adam and EMHS has irrevocably broken down. 

22      Mr Adam has provided to the Commission many letters and emails to and about EMHS from between 18 July 2018 and 8 May 2019.  I find the content and tone of many of those communications to be concerning.  His letters and emails can be conservatively characterised as aggressive, abusive and mocking.   In many of them, Mr Adam refers to his lack of trust and confidence in EMHS.  For example, in a letter sent to EMHS in September 2018, Mr Adam speaks about the need for him to use a surveillance device in the form of a ‘video recording pen’ when dealing with EMHS management and human resources because he considers them to be untrustworthy.  In an email addressed to the Chair of the EMHS Board dated 16 October 2018, Mr Adam writes ‘Seems [the Executive Director] herself has now opted to full inline [sic] with the rest of the corruption… Your management at Armadale Hospital is looking very much like they are all corrupt.’  In an email to the Commission sent in March 2019, Mr Adam refers to expecting a retaliatory response from management and says ‘The [t]oxic working environment is worse now than it ever has been.’  In a letter to my Associate dated 4 January 2019, Mr Adam states ‘I feel that all Management at Armadale Hospital have had a knife in my back since the day I commenced my employment.’  There are also many references to lies, conspiracy and coverups.

23      There is an overwhelming lack of trust and confidence in EMHS on Mr Adam’s part.  Based on EMHS’ submissions and the statements made by its Chief Executive and Executive Director in letters to Mr Adam, it is clear that EMHS also lacks trust and confidence in Mr Adam.  I find that the relationship of trust and confidence between the parties has broken down to such an extent that reinstatement or re-employment of Mr Adam is not reasonably feasible or capable of occurring.

24      Given the Commission could not order that Mr Adam be reinstated, re-employed or compensated, it would not be in the public interest to hear application U 146 of 2018 even if the parties had not reached a compromise agreement.

25      For these reasons, I will order that application U 146 of 2018 be dismissed.