PR967544
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against order
issued by Senior Deputy President Kaufman on 8 August 2005
[PR961189]
A. Zoiti-Licastro
(C2005/4451)
s.170CE application for relief re termination of employment
A. Zoiti-Licastro
and
Australian Taxation Office
(U2004/2489)
JUSTICE GIUDICE, PRESIDENT |
|
SENIOR DEPUTY PRESIDENT O’CALLAGHAN |
|
COMMISSIONER GAY |
MELBOURNE, 25 JANUARY 2006 |
Appeal – termination of employment – dismissal of application on the basis of completed settlement agreement – whether error in finding completed settlement agreement – whether power to dismiss application without a full hearing – Workplace Relations Act 1996 – ss.45,110(3),111(1)(g), 170CE, 170CEA, 170CFA,170CIB, 170JE(3).
DECISION
[1] This is an appeal, for which leave is required, by Ms A. Zoiti-Licastro against a decision issued by Senior Deputy President Kaufman on 20 July 2005 1 and an order made by him on 8 August 2005.2 Ms Zoiti-Licastro (the appellant) was formerly employed by the Australian Taxation Office (the ATO). The ATO terminated her employment on 15 March 2004. She lodged an application under s.170CE of the Act alleging that the termination was harsh, unjust and unreasonable. Conciliation was unsuccessful and on 9 July 2004 the appellant elected to proceed to arbitration. Following two adjournments the matter was listed for an estimated 5 days of hearing commencing on 7 March 2005.
[2] Prior to the hearing there were settlement discussions between counsel and the hearing was eventually adjourned by agreement. It later became apparent that the parties were in dispute as to what had occurred. The appellant’s view was that the settlement discussions had failed. The ATO’s view was to the contrary. When the appellant sought to have the Commission proceed with the arbitration the ATO made application for the proceedings to be dismissed on the basis that a settlement had been reached. It submitted in the alternative that the Commission should make an order requiring the appellant to provide security for costs.
[3] Senior Deputy President Kaufman heard the ATO’s application on 26 May 2005. On 20 July he issued a decision upholding the ATO’s application. He asked the parties to agree on appropriate orders. They were unable to do so and in the event the Senior Deputy President made an order on 8 August 2005 dismissing the appellant’s application.
[4] The evidence concerning the settlement discussions is set out in the Senior Deputy President’s decision. It is not necessary to repeat it all. It is clear that following discussions on 3 March 2005 between Mr Dowling on behalf of the appellant and Mr Niall on behalf of the ATO agreement was reached on the following terms:
(i) the ATO would pay the appellant $17,000 ($12,000 on the presentation of invoices for legal costs and $5,000 as an eligible termination payment);
(ii) a statement of service would be provided to the appellant;
(iii) payment would occur within 14 days of signing terms of settlement;
(iv) the appellant would adjourn the proceedings pending receipt of payment.
[5] Despite this level of agreement, the appellant contended that there was no completed agreement. She relied on two related issues. The first was that when a formal agreement was drawn up by the ATO’s solicitor for signature it contained provisions by which each party released the other from further liability in relation to the termination of employment. Mr Dowling maintained that a mutual release provision had not been discussed, let alone agreed upon, in the settlement discussions on 3 March 2005. Mr Niall testified that although it was unlikely, it was possible that no express reference had been made to mutual releases in the discussions. Nevertheless he regarded mutual releases as standard in settlements of the kind being discussed.
[6] The second matter relied upon by the appellant was that any agreement which had been made was conditional on written terms being agreed. Although there was no evidence of this condition being discussed, it appears that it was accepted by both sides that there would be a signed agreement in due course.
[7] Senior Deputy President Kaufman found against the appellant on both of these issues. We shall deal first with the argument based on the ATO’s insistence upon mutual releases.
[8] The Senior Deputy President found that the appellant had agreed to release the ATO from any liability arising from her employment by the ATO, save for personal injuries. He pointed out that the ATO’s solicitors had sent the appellant’s solicitors a facsimile letter on 4 March 2005 confirming the terms of settlement. The terms set out included the following:
“5. Mutual releases by both parties in the usual terms.”
[9] The Senior Deputy President also referred to a settlement agreement sent to the appellant’s solicitors by the ATO’s solicitors a few days after the settlement discussions on 7 March 2005. That agreement contained mutual release provisions. In particular it contained a clause by which the appellant released the ATO from any liability arising out of the appellant’s employment with the ATO, other than claims by the appellant under the Safety, Rehabilitation and Compensation Act 1988 and/or the relevant superannuation legislation. The Senior Deputy President regarded it as significant that no objection had been raised to the facsimile letter of 4 March or the settlement agreement forwarded on 7 March until the indication on 31 March 2005 that the appellant did not want to go ahead with the settlement. Furthermore Mr Dowling gave evidence that he had told his client, the appellant, that if she settled the proceedings she would be surrendering all of her rights, save any injury rights. This apparently took place before the conclusion of the discussions on 3 March 2005. 3 The Senior Deputy President appears to have placed great weight on this evidence also.
[10] We are satisfied that there was no relevant error in the Senior Deputy President’s reasoning on the release issue. It would be most unlikely, as the Senior Deputy President himself pointed out, that the ATO would pay money in settlement without receiving a release of some kind. Furthermore the release contained in the settlement agreement drafted by the ATO’s solicitors was in substance a release of the kind which Mr Dowling had advised the appellant she would have to accept in order to settle the case. It is not necessary that we comment further on the Senior Deputy President’s decision, because, regardless of the breadth of the release, nothing arising in connection with the question of the release casts doubt on the conclusion that there was a completed agreement.
[11] The second issue relied upon by the appellant was that the agreement reached between Counsel was “subject to written terms”. It was submitted that the agreement could not be said to be completed until a document had been signed by both parties.
[12] It is clear that the settlement agreement drafted by the ATO’s solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant’s focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005.
[13] We reject this challenge to the Senior Deputy President’s decision also.
[14] The final issue requiring consideration is the submission, put in a number of different ways, that the Senior Deputy President did not have power to dismiss the application. The nub of the submission was that the Commission is obliged by the terms of the Act to determine a s.170CE application by a full hearing unless there is a specific power to dismiss the application after something less than a full hearing. The submission raises a significant issue concerning the Commission’s power.
[15] The Senior Deputy President relied on the terms of s.111(1)(t) of the Act which are as follows:
“[The Commission may] generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute.”
[16] Although the section refers to proceedings in relation to an industrial dispute its application is extended to other proceedings before the Commission by s. 111(2) of the Act. The appellant submitted, among other things, that the Commission only has power to dismiss a s.170CE(1) application summarily in the circumstances specified in the Act. An application may be dismissed summarily on the basis that the application is outside jurisdiction (s.170CEA), the applicant failed to attend (s.170CIB) or if the Commission concludes during conciliation that the application has no reasonable prospect of success (s.170CF(5)). It was contended that the presence of these specific powers to dismiss an application overrides any general power in s.111(1)(t) or elsewhere. This contention was supported by a related argument based on the terms of s.170JE(3). That section precludes the Commission from acting on the grounds specified in s.111(1)(g) of the Act. Of particular relevance is the ground in paragraph (iii) of that section that further proceedings are not necessary or desirable in the public interest. It was also submitted that a finding that an action had been settled by agreement involves an impermissible use of judicial power.
[17] Various decisions were cited in support of these arguments. They included Grycan v Table Tennis Australia Incorporated 4, Casper v Chubb Security Personnel 5 and Gruber v Carton Services Limited6 .
[18] The correct position, in our view, was set out by the Full Bench in Micheletto v Korowa Anglican Girls’ School. 7 There the Commission referred to the relevant statutory powers and said:
“It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant’s case. The nature of the applicant’s right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB). There may be other circumstances in which an application might be dismissed without a full hearing and without infringing the rules of procedural fairness. It is necessary to explore in some detail what those circumstances might be.”
[19] The Full Bench went on to find that provided rules of procedural fairness were observed the Commission could uphold a no-case submission made by the respondent either at the conclusion of the applicant’s case or even prior to the applicant putting its case provided the application is manifestly untenable or groundless. 8
[20] Where the Commission finds that there is a complete answer to the applicant’s claim and dismisses the claim, there is no substance in any suggestion that the Commission has breached its duty to hear the application. And subject to the observance of the rules of natural justice, it is highly undesirable that the parties should be put to the expense of a full hearing when it is clear at the outset that the claim cannot succeed. Take a case in which there is a duly executed settlement agreement in evidence. Subject to the resolution of any argument about the binding nature of the agreement, the settlement would provide a complete answer to the claim and there would be no point in hearing the other evidence.
[21] For these reasons it is very unlikely that the legislature intended that the Commission should have no power to dismiss an application without a full hearing other than as specifically provided for in, for example, s.170CEA or s.170CIB. Furthermore, the text of provisions such as ss.170CEA and 170CIB does not indicate that they are intended to limit the Commission’s power to dismiss an application without hearing all of the evidence.
[22] Section 170CEA is in these terms:
“170CEA Motions for dismissal of application for want of jurisdiction
(1) A respondent may move for the dismissal of an application under section 170CE on the ground that the application is outside the jurisdiction of the Commission at any time, including a time before the Commission has begun dealing with the application.
(2) If:
(a) the respondent moves for the dismissal of an application on such a ground and has not previously so moved; and
(b) the respondent so moves before the matter is referred for conciliation by the Commission;
the Commission must deal with the motion before taking any action, or any further action, on that application, unless the respondent indicates that the matter may be dealt with at a later time.
(3) If the respondent moves for the dismissal of an application on such a ground, having already so moved on a previous occasion, the Commission must deal with the motion but may do so at any time it considers appropriate.”
[23] The section deals with motions to dismiss an application for want of jurisdiction. It provides that a respondent may move for the dismissal of an application on such grounds at any time. When a respondent makes such an application before the application is referred to conciliation, the respondent may insist on the application being dealt with before the Commission takes any other action. Should the first motion be unsuccessful, any subsequent motion on the same ground is to be dealt with at a time the Commission considers appropriate. The primary purpose of the section is to permit a respondent to require the Commission to deal with a motion for dismissal on jurisdictional grounds before conciliation and before any other step is taken in the application. There is no basis for concluding that the Commission’s power to determine its procedure is to be limited in any other respect. In particular, it can be inferred that the legislature did not intend to limit the Commission’s discretion to decide when to deal with a motion to dismiss an application on a ground other than want of jurisdiction.
[24] Section 170CIB is in these terms:
“170CIB Commission may dismiss application if applicant fails to attend
If an applicant in a proceeding relating to an application under section 170CE fails to attend the proceeding, the Commission, after giving the applicant reasonable notice and a reasonable opportunity to be heard, may dismiss the application under section 170CE.”
[25] The section confers a power on the Commission to dismiss an application without a full hearing if the applicant does not attend a proceeding. There is nothing in the terms of the section suggesting that there is no other situation in which the Commission can dismiss an application and it would be absurd to give the section such a meaning. The section only deals with circumstances in which the applicant does not attend and relieves the Commission of the obligation to hear the case. As we have endeavoured to show, where the Commission dismisses an application at a preliminary hearing because the respondent has demonstrated a complete answer to the application, it is incorrect to say that the Commission has not discharged its obligation to hear the case.
[26] In our view the fact that s.111(1)(g) is made inapplicable to s.170CE applications by the operation of s.170JE(3) is irrelevant to the issue. The power in s.111(1)(g) is a power to decline to exercise jurisdiction. If the Commission dismisses a s.170CE application on the basis that the applicant’s case cannot succeed it does not decline to exercise jurisdiction, to the contrary it exercises jurisdiction. So it was in this case that Senior Deputy President Kaufman exercised the jurisdiction under s.170CE and determined the appellant’s application. It is also relevant to point out that the Commission is bound by s.110(2)(c) to act according to equity, good conscience and the substantial merits of the case. While the proper exercise of the Commission’s functions and powers is always a matter of public interest, s.110(2)(c) provides a solid foundation for the summary dismissal of a s.170CE application which is manifestly untenable or groundless.
[27] The decision under appeal was a proper exercise of the power in s.111(1)(t). Once the Senior Deputy President had found that there was a completed settlement agreement, dismissal of the application was quite consistent with the requirement for a speedy and just hearing and determination.
[28] Before concluding we should also make it clear that in our opinion nothing which the Senior Deputy President did involved the use of judicial power. He determined the application before him on the basis that because the parties had reached a settlement the application could not succeed. It is true that he applied legal principles in deciding whether there was a binding settlement. But there is nothing exceptional in the Commission deciding legal questions as part of the proper exercise of its jurisdiction.
[29] We have considered all of the arguments advanced on the appellant’s behalf. There is no relevant error in the Senior Deputy President’s decision. In our view there is no reason in the public interest or otherwise why leave should be granted to appeal. It was for these reasons that we announced at the conclusion of the hearing that we did not intend to grant leave. The appeal is dismissed.
BY THE COMMISSION:
PRESIDENT
Appearances:
C Serpell of counsel for Ms A. Zoiti-Licastro.
M Rinaldi of counsel for the Australian Taxation Office.
Hearing details:
2005.
Melbourne.
22 November.
3 Transcript at paras [453]-[457].
4 Print S6175, 18 May 2000.
8 Ibid at paras [15]-[19].
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