Caulfield v Bellingen Shire Council

[2021] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Caulfield v Bellingen Shire Council [2021] NSWCATAD 267

Hearing dates:

On the Papers

Date of orders:

15 September 2021

Decision date:

15 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member
Dr M. Murray, General Member

Decision:

(1) The application for dismissal of the complaint is granted.

(2) The complaint is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination- enforcement of settlement – whether Deed of Settlement and Release precludes applicant for continuing with claim.

Legislation Cited:

Anti-Discrimination Act, 1977 (NSW).

Civil and Administrative Tribunal Act 2013 (NSW).

Category:

Principal judgment

Parties:

Anthony Caulfield (Applicant)
Bellingen Shire Council (Respondent)

Representation:

Applicant - Self Represented
Respondent – Adam Dansie, Local Government NSW.

File Number(s):

2021/00080160

REASONS FOR DECISION

1. This was an application for a Complaint under the Anti-Discrimination Act, 1977(NSW) (referred to here as ‘the Act’) to be dismissed on the basis that the parties had entered into a Deed of Release that included this application.

Background

2. On 15 September 2020 the President of Anti-Discrimination NSW (formerly known as the Anti-Discrimination Board) received a complaint under the Act from Mr Anthony Caulfield, (referred to here as ‘the applicant’) alleging discrimination in the workplace on the grounds of homosexuality. The file reference allocated to the complaint by Anti-Discrimination NSW was C2020/0556. The relevance of this assignation is discussed below.

3. On 10 March 2021 the Delegate of the President of Anti-Discrimination NSW formed the view that the matter was unable to be resolved by conciliation and should therefore be referred to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (referred to here as ‘the Tribunal’) pursuant to s 93C of the Act.

4. The proceedings were therefore referred to the Tribunal. They bear an NCAT file number 2021/00080160. On 21 April 2021 the Tribunal held a case conference at which the respondent appeared but the applicant did not. The respondent argued that the matter had been settled as set out in a Deed of Release in other proceedings.

5. A further case conference was held on 5 May 2021 where the applicant indicated that he did not share the view expressed by the respondent that the matter had been resolved. Directions were therefore made for the filing of any submissions regarding the matter.

6. The applicant filed an application setting out his request that the Tribunal consider the matter, which he did not regard as having been finalised. The respondent also filed submissions and an affidavit by Ms Elizabeth Jeremy dated 24 May 2021.

7. Both parties have consented to the application made by the respondent to dismiss the matter being considered by the Tribunal “on the papers,” without further oral hearing.

Evidence

8. The applicant’s application stated that he was an employee of Complete Staffing Solutions from 4 June 20216 to 10 November 2019 and was contracted to Bellingen Shire Council. He alleges that he was subjected to discrimination, bullying and harassment by Bellingen Shire Council in the course of his duties and that a particular incident occurred on 12 September 2019.

9. The applicant acknowledged, in his application regarding the possible dismissal of his claim, that Council’s request for a discontinuance of his application is based upon a Deed of Settlement and Release from his employment.

10. The affidavit of Ms Elizabeth Jeremy, General Manager of Bellingen Shire Council, dated 24 May 2021, sets out that on 11 November 2019 the applicant was appointed by the respondent to the positon of ‘Team Leader Customer and Business Services’. The applicant made allegations regarding conduct in the workplace. There was a workplace investigation of these allegations, resulting in the applicant’s services being terminated.

11. The applicant then commenced proceedings for unfair dismissal in the Industrial Relations Commission of NSW (‘IRC’), bearing a matter number 2021/00010649.He also commenced proceedings at Anti-Discrimination NSW, which had a matter number of C2020/0556.

12. The unfair dismissal proceedings were listed for Conciliation and Directions on 22 February 2021. Both parties were legally represented on that day, the applicant by Mr James Blaxland of Ticil Blaxland Lawyers.

13. Whilst the applicant was legally represented, an agreement was reached to resolve both sets of proceedings (the IRC and anti-discrimination proceedings). A Deed of Settlement and Release was entered into (referred to here as the ‘Deed’), by the applicant on 2 March 2021 and by the respondent on 8 March 2021. A copy of the Deed was annexed to the affidavit of Ms Jeremy.

14. Recital E of the Deed states as follows:

“The Employer and Employee have agreed to settle all claims arising out of or relating in any way to the Proceedings, the Employee’s employment with the Employer and the cessation of the Employee’s employment with the Employer, except for claims arising under the NSW workers’ compensation legislation.”

15. Clause 11 of the Deed provides:

“The Employee and the Employer, by this Deed, release each other from all claims arising out of or relating in any way to the Proceedings, the Employee’s employment with the Employer and cessation of the Employee’s employment with the Employer, except for claims arising under the NSW workers’ compensation legislation.”

16. Clause 1(i) of the Operative Provisions of the Deed defines “Proceedings” as:

“Industrial Relations Commission of NSW Matter No 2021/00010646, Anti-Discrimination NSW Complaint reference number c2020/0556 and any related proceedings before the NSW Civil and Administrative Tribunal”.

17. Clause 1(j) of the Operative Provisions defines “Claims” as follows:

“Any or all, actual or potential complaint, action, suit, cause of action, arbitration, debt due, cost, claim, entitlement, allegation, demand in respect of damages and any other benefit, verdict or judgement whatsoever at law or in equity or arising under the provisions of any statute, award or determination whether known at this date or not, with the exception of claims arising under the provisions of the NSW workers’ Compensation legislation.”

18. Clause 12 of the Deed provides that:

“Except in relation to a breach of this Deed, this Deed may be pleaded as a full and complete defence by the Employer, to any claims commenced, continued or taken by the Employee or on the Employee’s behalf in connection with any of the matters referred to in this Deed.”

19. The Deed was executed by both parties. The applicant’s signature was witnessed by his solicitor, Mr James Blaxland and dated 2 March 2021.

20. The Deed states at Clause 8 that:

“The Employee and Employer acknowledge that they have been provided with the opportunity to seek independent legal or industrial advice prior to the execution of this Deed.”

21. Clause 9 provides that:

“The Employee and Employer acknowledge that they have had an opportunity to read this Deed prior to its execution.”

Consideration

22. The complaint that the applicant brought to Anti-Discrimination NSW, numbered C2020/0556, is the same complaint that has been referred to the Tribunal and now bears an NCAT file number 2021/00080160. As the matter did not resolve by conciliation, the complaint was transferred to the Tribunal to be heard by the Tribunal. The NCAT proceedings therefore fall within the meaning of the term “and any related proceedings before the NSW Civil and Administrative Tribunal” as set out in Clause 1(i) of the Operative Provisions of the Deed defining “Proceedings.”

23. The NCAT proceedings are “related proceedings” because they arise from the Anti-Discrimination NSW complaint numbered C2020/0556, which has been referred to NCAT. The facts and circumstances relied upon by the applicant in the complaint before Anti-Discrimination NSW are materially the same as those relied upon in the NCAT proceedings bearing an NCAT file reference of 2021/00080160.

24. The evidence that is before the Tribunal discloses that at a time when the applicant was legally represented, the Deed was entered into by him finalising his rights and entitlements in relation to two sets of proceedings: those in the Industrial Relations Commission of NSW and these proceedings in the Tribunal that flowed from his complaint to Anti-Discrimination NSW, number C2020/0556.

25. The terms of the Deed clearly state, particularly in Recital E and Clause 11, that by executing the Deed, the parties agree that the applicant may not bring, maintain or continue any action arising from his employment except pursuant to the workers’ compensation legislation of NSW.

26. The definition of “Proceedings” in the Deed includes this complaint that has been referred to the Tribunal by Anti-Discrimination NSW.

27. The applicant executed the Deed on 2 March 2021 and his signature was witnessed by his Solicitor, Mr Blaxland.

28. The proceedings in the Tribunal are finalised by the agreement between the parties as set out in the Deed. It is not therefore open to the applicant to continue these proceedings. The respondent is entitled to plead the Deed as a complete defence to any attempt to continue the application that is presently before the Tribunal.

29. Section 59 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal may make such orders (including orders dismissing an application) as it thinks fit in order to give effect to any agreed settlement reached by the parties to the proceedings, providing:

(a) The terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal; and

(b) The Tribunal is satisfied that it would have the power to make a decision in, or in terms consistent with, the terms of the agreed settlement.

30. The Tribunal is satisfied that the agreed settlement is in writing, signed by or on behalf of the parties and lodged with the Tribunal.

31. The Tribunal is satisfied that it has power under ss102 and 108 of the Act to make a decision dismissing a complaint and awarding damages.

32. The applicant has attested to the fact that he has had an opportunity to obtain independent legal or industrial advice and that he has read the Deed itself.

33. In view of the terms of the terms of the Deed and the fact that the applicant had legal representation when it was executed, it is appropriate that the application presently before the Tribunal be dismissed.

34. Section 88B of the Act provides that whilst a person may make a complaint in more than one jurisdiction, as set out in s88(2), the Tribunal “must have regard to any such proceedings, and to the outcome of any such proceedings, in dealing with or determining the complaint.”

35. As required by s88B(2) of the Act, the Tribunal also takes into account the outcome of the Industrial Relations Commission proceedings bearing a Matter number of 2021/001110646, which are also dealt with in the Deed.

Orders

1. The application, by the respondent to the complaint, seeking that the complaint be dismissed, is granted.

2. The complaint bearing an NCAT file number 2021/000880160 is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 September 2021