2002 WAIRC 06176
100212464


WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES PREMILA LEVACI
APPLICANT
-V-

CANNING DIVISION OF GENERAL PRACTICE LTD
RESPONDENT
CORAM COMMISSIONER J H SMITH
DELIVERED FRIDAY, 9 AUGUST 2002
FILE NO. APPLICATION 601 OF 2001
CITATION NO. 2002 WAIRC 06176
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Result Application to be dismissed if the Respondent complies with settlement agreement.
Representation
APPLICANT IN PERSON

RESPONDENT MR G R BARTLETT (OF COUNSEL)
_______________________________________________________________________________

Reasons for Decision

1 Ms Premila Levaci ("the Applicant") made an application under s.29(1)(b)(i) of the Industrial Relations Act 1979 ("the Act") claiming that she was harshly, oppressively or unfairly dismissed by the Respondent on 13 March 2001.
2 Following a hearing the Commission made an order to amend the name of the Respondent from Chief Executive Officer Canning Division of General Practice Ltd to Canning Division of General Practice Ltd on 13 March 2002 [2002] WAIRC 05001. In part the history of this matter is set out in reasons for decision in respect of the application to amend, delivered on 8 March 2002 in [2002] WAIRC 04933.
3 The substantive application for the hearing as to whether the Applicant was harshly, oppressively or unfairly dismissed was listed for hearing on 18, 19 and 20 March 2002. Prior to the hearing the Respondent made an application to adjourn the hearing as it proposed to appeal against the decision of the Commission to amend the name of the Respondent. On 14 March 2002 the Commission heard the Respondent's application to adjourn. At that hearing Mr Martel appeared on behalf of the Respondent and Ms Pittard of counsel, instructed by solicitors, Hammond Worthington, appeared on behalf of the Applicant. Ms Pittard advised the Commission that the Applicant's response to the application to adjourn was not to consent to an adjournment but not to object to the Commission making an order to adjourn the hearing. The Commission granted the application to adjourn and pursuant to s.32 of the Act listed the matter for a further conciliation conference on 18 March 2002.
4 The Commission's file records that a s.32 conciliation conference was held on 18 March 2002. Ms Bahemia, instructed by Hammond Worthington, appeared on behalf of the Applicant. The Applicant also attended the conference. Mr Martel represented the Respondent. Dr Bott and Ms Lawrence also attended the conference on behalf of the Respondent. The Commission's file records in a letter to the parties dated 20 March 2002 that at the conclusion of the conference the Respondent made an offer to the Applicant and the Applicant accepted the offer in full and final settlement of her claim that she was harshly, oppressively or unfairly dismissed. One of the terms of that agreement is that the terms of the settlement be kept confidential. Accordingly these reasons for decision do not expressly set out the terms of that settlement other than to say that it was agreed that within seven days of the execution of a deed of settlement the Respondent agreed to pay the Applicant a specified number of weeks' pay plus an amount for legal costs. The deed was to include a confidentiality clause and a no adverse comments clause. It was a term of the settlement that the Respondent was to provide the Applicant with a statement of service. It was also agreed that if a particular doctor employed by the Respondent was prepared to provide a reference to the Applicant, he could do so on his own letterhead and could refer to the Applicant's employment with the Respondent. Further, the terms of the settlement required the Applicant to file a notice of discontinuance within two days of the settlement monies being received by her.
5 Following the conference, a dispute arose in relation to the terms of the proposed deed of settlement. On 8 April 2002 the Respondent's solicitors wrote to the Commission seeking a further conference. In a letter to the Commission dated 8 April 2002, the Respondent's solicitors stated:
"We confirm that this matter has not settled in accordance with the agreement made at the conference before Commissioner Smith on 18 March 2002.
Due to our understanding that the parties had reached an agreement to settle this matter, our client properly elected not to lodge an appeal within the usual 21 days. On several occasions between 26 March 2002 and 4 April 2002 we attempted to finalise the deed of settlement with the Applicant's solicitors. The Applicant's solicitors did not respond until April 5 2002 at which time they, on behalf of the Applicant, proposed amendments to the deed contrary to the terms agreed on 18 March 2002."
6 Following receipt of that letter the Commission convened a further s.32 conference on 10 April 2002. At that conference Ms Bahemia appeared on behalf of the Applicant and Mr Bartlett appeared on behalf of the Respondent. At the conference the Commission was provided with a copy of the proposed deed of settlement and release. Ms Bahemia advised the Commission that the Applicant did not agree with a number of provisions in the deed. Ms Bahemia advised the Commission that the Applicant did not agree with the terms of the confidential information clause, the release clause, the no adverse comments clause, no contact clause and the absolute liability clause. At the end of the conference Ms Bahemia undertook to obtain instructions from the Applicant in relation to a number of changes to the deed the Respondent proposed in response to the Applicant's concerns. On 23 April 2002 the Applicant's solicitors wrote to the Commission advising the Commission that the terms of the deed of settlement had not been agreed between the parties and the Applicant sought to have the matter relisted for hearing for three days.
7 On 17 May 2002 the Commission listed the matter for hearing for three days on 3, 4 and 5 September 2002 and on 12 June 2002 an amended notice of hearing was sent to the parties advising that the matter would be heard on 3, 5 and 6 September 2002. On 12 June 2002 the Commission received a letter from Hammond Worthington advising that they were no longer representing the Applicant in these proceedings and to refer all matters directly to the Applicant.
8 On 24 June 2002 the Respondent's solicitors wrote to the Commission attaching letters sent to Ms Levaci in which issues in relation to discovery and other programming orders were raised. The Applicant responded to that letter on 21 June 2002 and advised the Respondent that discovery had already been given.
9 On 2 July 2002 the Respondent's solicitors wrote to the Commission and made an application for an order discontinuing the Applicant's application on the basis of the agreement reached before the Commission on 18 March 2002. In the letter to the Commission dated 2 July 2002 the Respondent advised the Commission that the Respondent no longer required the Applicant to enter into a deed of settlement as it no longer sought a complete release from all claims by the Applicant and it was seeking an order in terms of the settlement reached on 18 March 2002.
10 On 3 July 2002 the Commission received a letter from the Applicant advising the Commission that Mr Stubbs from Dwyer Durack was now acting as her solicitor. On 8 July 2002 the Commission received a letter from solicitors Dwyer Durack advising the Commission that they were acting for the Applicant.
11 The Commission then listed this matter for mention only on 7 August 2002 to hear the Respondent's application for orders in terms of the settlement and to discontinue the proceedings. A notice of hearing was sent to Dwyer Durack on 2 August 2002. On 5 August 2002 the Applicant contacted the Commission and advised that Dwyer Durack would not be representing her at the hearing on 7 August 2002.
12 On 6 August 2002 the Commission received a copy of the following letter from the Applicant:
"I am faxing you documents for inclusion for WAIRC hearing for mention, notified to me yesterday 5th August 2002.
I attach relevant documents as follows:
1. Clayton Utz letter dated 10th April 2002 1 page
2. Hammond Worthington letter dated 9th Jan 2002 1 page
3. WAIRC Fm 32 Industrial Relations Act 1979, dated 17th May 02 1 page
My position remains respectfully as, the last terms of settlement contained in the deed before the Commission expired. Clayton Utz rejected crucial changes to the original 'draft Deed of Settlement' for matters beyond the jurisdiction of the WAIRC.
¨ The draft deed of settlement before the Commission submitted by Canning Division of General Practice Ltd is now superfluous.
¨ Libellous and adverse comments, adverse to me professionally and personally and the involvement of parties not involved with the matter before the Commission, has continued without censure or caution from Canning Division of General Practice Ltd,
¨ I will present evidence to support my application progressing to hearing as listed for the 4th, 6th and 7th September 2002 without further delays. I will appeal to the Magistrates Bench if I am further denied the lawful progress of my application to hearing.
I contend that a hearing will be lawful process, with due respect to the Commissioner as an impartial 'umpire'. Hearing delays of my application have been at a great professional and personal cost to me."
13 On 7 August 2002 the Commission heard the Respondent's application. The Applicant appeared in person. Mr Bartlett appeared on behalf of the Respondent. In support of the Respondent's application Mr Bartlett advised the Commission that the Respondent was now seeking an order that the Applicant's application be dismissed pursuant to s.27(1)(a) of the Act on the basis that further proceedings are not necessary or desirable in the public interest on grounds that the Respondent was prepared to comply with the terms of the agreement entered into on 18 March 2002 and that they did not wish to pursue the condition of the settlement that the Applicant enter into a deed of settlement. Mr Bartlett advised the Commission that he had in his possession a cheque for the sum that had been agreed that the Respondent would pay to the Applicant and he also had in his possession a statement of service. Mr Bartlett also advised the Commission that the Respondent would consent to an order that the application be dismissed being made if the Respondent executed its obligations under the terms of the settlement within seven days. In particular it would pay the Applicant the settlement sum and provide the Applicant with a statement of service. Further in discharge of its obligations the Respondent would provide to the Applicant a letter setting out its undertaking that it would not make any adverse comment about the Applicant and that undertaking would extend to the Respondent, its employees, directors and agents. Further the Respondent would state in that letter that the doctor in question, if prepared to provide a reference for the Applicant could do so on his own letterhead and may refer to the Applicant's employment with the Respondent.
14 In support of its application, Mr Bartlett on behalf of the Respondent advised the Commission that the Respondent relied upon the settlement and in doing so forwent its right to file an appeal against the Commission's earlier decision to amend the name of the Respondent. Further, that s.6(d) of the Act, in providing that the principal objects of the Act are to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes, requires that where parties reach an agreement to settle a dispute, those agreements should be honoured.
15 The Applicant submitted that the hearing in September 2002 should proceed. She advised the Commission that Dwyer Durack would be acting for her at that hearing. The Applicant contends that she has a strong case that she was harshly, oppressively or unfairly dismissed. The Applicant however, conceded that she did agree to the terms of the settlement set out in the letter from the Commission dated 20 March 2002 on the proviso that the matters to be contained in the deed would be agreed. The Applicant contends that the Respondent has not complied with its undertaking not to make any adverse comments about her. As set out in paragraph 12 of these reasons, the Applicant contends that the Respondent has made libellous and adverse comments about her.
Conclusion
16 Having heard the submissions made by and on behalf of the parties, I am of the view that the Commission should make an order dismissing the Applicant's claim if the Respondent satisfies its obligations pursuant to the terms of the settlement agreement reached on 18 March 2002. The reasons why I have reached this view are as follows.
17 In Foley v G & J Reely School of Dancing Pty Ltd trading as Arthur Murray School of Dancing (1996) 76 WAIG 4342 at 4343 Commissioner Fielding as then was observed:
"The Commission constituted by the Full Bench has said, on at least one occasion, that where parties reach an agreement in a conference they ought not, upon reflection, be allowed to undo that agreement and relitigate the original matter. There is obviously a good reason for that; that is, that one of the principal tenets upon which the Commission is erected is that it should endeavour to resolve matters by conciliation. If the parties do reach agreement by conciliation, then the Commission should do all in its power to see that those agreements are upheld and honoured."
18 In Bradbury v Great Western Real Estate (1995) 75 WAIG 2927 the Full Bench heard an appeal against the decision of the Commission to dismiss an unfair dismissal application after an agreement was reached between the parties to compromise the application. In that case the parties agreed at an s.32 conference that the Respondent pay the Applicant a sum of money and to retract any accusation of theft. At a later s.32 conference the Applicant informed the Commission he had been paid the sum of money and provided a notice of discontinuance to the Respondent but did not file it. Sharkey P held at 2928 that the Commission had properly exercised its discretion under s.27 of the Act to dismiss the application as the agreement reached had been partly performed by the Respondent, and partly performed by the Applicant by the delivery of a notice of discontinuance. Sharkey P also held (at 2928) that the application had been extinguished by binding accord and satisfaction. Further at 2928 Sharkey P observed:
"As a matter of equity, good conscience and the substantial merits of the case, it would have been quite unfair to allow a person (the appellant), having entered into an agreement and not performed it, to proceed with his application in breach of it. Indeed, it would have been open to the respondent to take action to prevent this at law. 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."
19 The Commission is empowered under s.23A of the Act to make an order for reinstatement or to make an order of compensation up to an amount of six months' remuneration. In this matter if the Commission was to hear and determine the Applicant's claim the only orders the Commission could make at the end of the hearing would be:
(a) to dismiss the Applicant's claim; or
(b) to make an order declaring the Applicant was harshly, oppressively or unfairly dismissed and, if so, order the Respondent to pay the Applicant compensation.
20 The Commission is unable to make any orders requiring any party to not make any adverse comments about each other under s.23A. If it is the case (and I make no judgment about that), that the Respondent has made adverse comments about the Applicant then that is an issue that would have to be pursued by the Applicant in another jurisdiction. Having convened a number of conciliation conferences in this matter and read the correspondence between the parties it is clear that the Applicant has made numerous allegations that the Respondent through its agents and employees have made adverse comments about her. Consequently it is my view that the Commission would not make an order for reinstatement if it was to determine that the Applicant had been harshly, unfairly or oppressively dismissed as it is clear that reinstatement would be impracticable.
21 Whilst the Respondent has entered into an agreement to pay the Applicant a sum of money in settlement of her claim, the agreement to do so by the Respondent is made without the admission of liability. Having said that, it is apparent from the amount that the Respondent has agreed to pay, that if the Commission were to make an order at the conclusion of a three day hearing that the Respondent pay the Applicant 26 weeks' remuneration as compensation, any amount the Applicant may ultimately receive if the Applicant is to continue to brief solicitors to act on her behalf, is likely to be substantially less than the amount the Respondent agreed to pay her on 18 March 2002. The Applicant says that she has already incurred substantial legal costs.
22 In light of these reasons if the Respondent satisfies the terms of the settlement agreement in the manner set out above within seven days, the Commission will vacate the dates for hearing and make an order dismissing the Applicant's application.