Bridget Curtis v Darwin City Council - [2012] FWA 5224

Note: An appeal pursuant to s.604 (C2012/4669) was lodged against this decision - refer to Full Bench decision dated 17 September 2012 [[2012] FWAFB 8021] for result of appeal.

[2012] FWA 5224

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bridget Curtis
v
Darwin City Council
(U2011/14723)

COMMISSIONER SIMPSON

BRISBANE, 2 JULY 2012

Application for unfair dismissal remedy - jurisdictional objection - whether matter subject to agreement to settle - whether matter barred from proceeding - discretion under s587.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Bridget Curtis (“the Applicant”) who alleges that the termination of her employment with Darwin City Council (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act. The Applicant had been employed by the Respondent for approximately 10 years in various horticulturalist positions. 1

[2] The application was filed on 20 December 2011 by the Applicants then representative United Voice. A conciliation conference was convened on 30 January 2012 but did not proceed as the parties advised that a settlement had been reached in the matter.

[3] On 16 February 2012 correspondence was received by the Tribunal from Mr Antony Downs of NT Law enclosing a Form F53 - Notice of Representative Commencing to Act on behalf of Ms Curtis and requesting that the matter be set down for a further conciliation conference.

[4] A further conciliation conference was listed for 29 March 2012. An adjournment request was granted to the Applicants’ representative and the matter relisted for conciliation on 4 April 2012.

[5] On 29 March 2012 the Applicant representative filed an amended application (“the amended application”) for unfair dismissal remedy.

[6] On 30 March 2012 the Respondent filed a Form F4 - Objection to Application for Unfair Dismissal Remedy and further advised the Tribunal that the Respondent would not participate in any further conciliation of the matter until the objection to the application was heard and determined.

[7] The matter was then allocated to my Chambers for determination of the jurisdictional application that it had been settled pursuant to a binding agreement between the parties, and then, if necessary, the merits of the application. The matter was listed for Mention on 21 May 2012, directions were issued and the matter set down for Hearing of the jurisdictional matter on 18 June 2012.

[8] The matter proceeded by way of video and telephone link between Darwin and Brisbane. While this arrangement was not ideal I thank the parties and their representatives for the way in which they assisted the Tribunal in this matter.

[9] At the Hearing the Applicant was represented by Mr Taylor of Counsel and Mr Downs of NT Law. The Respondent was represented by Mr Roffey of the Western Australian Local Government Association.

THE LEGISLATION

[10] The Respondent submitted by their Form F4 that the Tribunal should exercise its discretion and dismiss the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 5224
Decision Date: 2 JULY 2012

CaseChat Overview and Summary

Bridget Curtis brought a claim against Darwin City Council for an unfair dismissal remedy, which was contested on jurisdictional grounds. The Council argued that the matter was subject to an agreement to settle and was thus barred from proceeding. The case was heard in the Fair Work Commission, where the primary issue was whether the Commission had the authority to hear the matter given the existence of an agreement to settle. Additionally, the Council argued that the matter was barred due to the terms of the settlement agreement.

The Commission examined the terms of the settlement agreement and determined that it did not preclude the Commission from exercising its jurisdiction over the unfair dismissal remedy claim. The Commission found that the agreement did not explicitly mention the unfair dismissal claim, and therefore, the claim was not barred. The Council's argument that the matter was subject to the agreement was rejected. The Commission held that the settlement agreement did not cover the unfair dismissal claim and that the Commission had the discretion to proceed with the matter under section 587 of the Fair Work Act.

The Commission concluded that the jurisdictional objection was without merit and that the matter could proceed. The Commission exercised its discretion to hear the unfair dismissal claim, finding that the terms of the settlement agreement did not bar the claim. The Commission's decision was based on a careful interpretation of the agreement and the applicable legislation. The Council's objection was dismissed, allowing the unfair dismissal remedy claim to proceed. The Commission's decision highlights the importance of clear and comprehensive settlement agreements to ensure that all potential claims are addressed and resolved.

Orders