Farrugia v Dyson's Bus Services Pty Ltd
[1996] IRCA 463
•26 September 1996
DECISION NO: 463/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1315 of 1996
B E T W E E N:
Frank FARRUGIA
Applicant
A N D
DYSON’S BUS SERVICES PTY LTD
Respondent
REASONS FOR DECISION
26 September 1996 PARKINSON JR
This is an application made pursuant to Section 170EA of the Industrial Relations Act 1988. (“the Act”) The applicant was employed by the respondent as a bus driver. He was employed in this capacity for over 11 years, initially by another route operator and then by the respondent as successor or assignee of the business of the former employer. The applicant’s employment was terminated by the respondent on Friday 16 February, 1996 in circumstances where the applicant had allegedly damaged a tyre of one of the respondent’s vehicles. It was alleged that he had continued to drive the vehicle to the depot after becoming aware that it had a flat tyre and had thus stripped the tyre and damaged the tyre rim.
The respondent contends that there was a settlement in relation to the termination of the employment and consequently the application ought be dismissed. It alleges the settlement arose out of discussions between officials of the Transport Workers Union of Australia and the respondent on Monday 19 February 1996. As a result of those discussions, the respondent agreed to pay to the applicant an amount of 11 weeks pay in settlement of the matter, together with provision of a written reference and payment of all accrued entitlements. The amount of 11 weeks pay together with all other outstanding entitlements were in fact paid to the applicant in person on Tuesday, 20 February, 1996.
The applicant contends that there was never an agreement by him to the terms of the settlement reached between the union and the respondent and contends that any such settlement was made without authority or contrary to the authority he had given. Further he contends that he was never informed that it was a term of any settlement reached that he was precluded from bringing an application in respect of unlawful termination of employment. There are two aspects to this argument. The first is whether there was a settlement and whether such settlement contained a term either express or implied, that the applicant would forego any right to take legal proceedings in respect of the alleged unlawful termination of his employment, and the second is whether the applicant was ever a party to any such settlement or agreement, either individually or by way of the action of an agent.
In the proceedings the respondent referred to a document which it had created, in which it said the terms agreed at the meeting on 19 February, 1996 were confirmed in writing. That document (Exhibit R5) was created by the respondent’s manager, Mr Shane Dyson, some time after the termination of the applicant’s employment and forwarded to the union some time after that date. The applicant had not prior to these proceedings seen the document, nor had he been invited to agree to its terms. Counsel for the respondent relies upon the document as being evidence of the terms of the agreement between the parties, rather than as being an agreement in writing as to settlement. The document purports to reflect the terms of a settlement between the parties. The document has to it some aspects which are clearly inaccurate.
The document states;
“Mr Farrugia agreed and accepted this settlement and the grounds of his dismissal ”.
The evidence in the proceeding is to the contrary of at least the latter part of this statement or the implication contained in that part of the statement. There is no evidence to suggest that the applicant at the time of the meeting indicated to any person that he accepted that the grounds of his dismissal were valid or correct. The evidence is to the contrary. I am satisfied that at no time in that meeting or at any other time did the applicant concede or agree or accept that his conduct was such that it warranted dismissal. The document is not an accurate reflection of the parties positions as to that matter. There are also other aspects of the document which are unsatisfactory. The document is divided into two parts, the first part of the document sets out in narrative style the discussions between the parties. My conclusion as to at least one aspect of this part has already been set out. It is this narrative extract which identifies the only reference to the applicant agreeing to settle the dispute as to the termination of his employment and to compromise his rights to sue. There is no reference in that part of the document which sets out the actual terms of the agreement, to any compromise of rights, or that the agreement is in settlement of the claim or any claim which might be made in this Court or the Industrial Relations Commission. The document is of assistance to the Court in terms of the detail in the second part as to the quantum of monies alleged to have been agreed, however in so far as the nature of the agreement reached and discussions held between the parties, I prefer to have regard to the oral evidence.
The evidence of Mr Mavroudis, the senior union organiser, was that the applicant contacted him on Friday, 16 February, 1996, after his employment had been terminated seeking his assistance in negotiations with the respondent to regain his employment and that he made arrangements in this regard.
On Monday 19 February, 1996 there were discussions between the respondent, the applicant and the union at the respondent’s premises as to the circumstances of the termination of the applicant’s employment. His evidence was that the applicant was present during the course of the negotiations with the respondent, save for on one occasion when discussions were held between Mr Dyson, Mr Mavroudis and Mr Picone, the latter also being a union organiser. In that discussion the amount of monetary settlement was discussed and increased. There were lengthy discussions and discourse between the parties, with each side referring offers to the other. The evidence of Mr Mavroudis is that at first the applicant rejected a monetary settlement, but then subsequently agreed to settle the matter for the increased amount of 11 weeks pay negotiated with the respondent. Both Mr Mavroudis and Mr Picone confirmed that terms of settlement were reached on 19 February and that those terms had been agreed to by the applicant.
At the conclusion of the meeting on 19 February, arrangements were made for the applicant to return to the workplace the following day to collect the monies owed and any other entitlements, including a reference. He returned to the workplace on 20 February, and collected the monies. In the process of so doing he signed for the amounts collected. (Exhibit R1) No explanation has been given for the acceptance of the additional monies by the applicant, nor as to what they were attributable if not to a settlement agreement. The documentation accompanying the amounts paid (Exhibit R4), sets out a breakdown of the amounts and to what they are attributable. The applicant accepted the monies and made no objection at that time to the terms of the settlement, nor did he make any reference to not agreeing to the terms.
Proceedings were issued in the Industrial Relations Commission on 22 February, 1996 after the applicant was advised by his solicitor that he had a claim for unlawful termination of employment. The applicant does not suggest however in his evidence that this was the first time that he had been advised of this course being available to him. It is clear that in the course of the discussions with the respondent and the union, the applicant knew of this alternative.
I am satisfied that it was the understanding of all parties present at the meeting on 19 February, was that the dispute between the respondent and the applicant as to the termination of the applicant’s employment had been resolved by the monetary amount agreed to be paid to the applicant by the respondent. I am satisfied that the purpose of the discussions on Monday 19 September was to resolve the dispute as to the termination of the applicant’s employment and that the discussions were held in contemplation and in consideration of potential proceedings alleging unlawful termination of employment being initiated by the applicant or the union on the applicant’s behalf in the Australian Industrial Relations Commission. The evidence is clear that all parties had in mind the likelihood of proceedings being brought in the event that a settlement was not reached.
I am satisfied that in this case the union, acting as it did at the request of the applicant and specifically on his behalf as an individual member, was acting as agent of the applicant in the negotiations on 19 February. The evidence establishes that the applicant requested that the union attend to represent and advocate his interests. The evidence is also that the applicant discussed with the union representatives the options available to him in relation to the matter.
I am satisfied that these options were understood by the applicant at the time of the meetings with the respondent as being, either settle the matter between the parties on whatever terms were agreed, or proceed to the Industrial Relations Commission by an application alleging unlawful termination of employment. The applicant’s evidence was that these options were discussed, and although it is his evidence that he did not appreciate fully the consequences of a settlement between the parties, he did not deny that the settlement was reached in relation to the termination of his employment in circumstances where he and other parties to the negotiations were aware of the possibility of legal proceedings.
I am satisfied that the applicant agreed to accept a monetary payment in settlement of the dispute between himself and the respondent as to the termination of his employment. I am not satisfied that there was anything which could characterise the agreement reached as being one which was unconscionable or one which the applicant entered under duress. It is appropriate also to note that I am satisfied that the consideration was adequate and not illusory. The amount of the payment made constituted amounts beyond that which was payable pursuant to the award obligations, any contract of employment or any industrial agreement between the respondent and the union. I am satisfied that the negotiations in all material respects took place in the presence of the applicant and the final conclusion to the agreement wherein the parties expressed their consent, the applicant was present and participated by expressing his consent. In the circumstances whilst the applicant was being represented by the union, he was also present at and a participant in the negotiations, at least in terms of the conclusion of the agreement.
I am also satisfied that the respondent was entitled to rely upon the ostensible authority of the union in acting as agent for the applicant. I have earlier set out my reasons for concluding that in this case the union did act as agent for the applicant, despite the general proposition that a union is not an agent for its members. This is by way of what I am satisfied was express appointment of the union, by the applicant, to this capacity. The respondent was entitled to assume that the union had the authority to negotiate on terms of settlement, including terms of monetary settlement. This is particularly so in circumstances where the applicant was present in the negotiations and there was nothing said by him either expressly or which could be construed as a limitation upon the authority of the union to negotiate terms. I am satisfied that at no time during or even prior to collecting the monies on 20 February, did the applicant advise any person, including the union officials that he did not agree to the terms of settlement negotiated between the parties.
This case is one where it is apparent that the applicant subsequently became dissatisfied with the terms of the settlement. His evidence was that he maintained he had always sought reinstatement and it is sought to be argued that as he was not expressly told that the settlement for money precluded his taking proceedings for unlawful termination, as a consequence the settlement was not agreed to by the applicant. This argument assumes that the union did not act as agent for the applicant and I have earlier found that it did. However it is appropriate to deal with this aspect of the argument. Firstly, I am not satisfied as was put on behalf of the applicant that it was a necessity that the terms of settlement expressly provide for a compromise of action for there to be a binding settlement, nor am I satisfied that the terms required that the they be reduced to writing or signed by the applicant. I am satisfied on the evidence that even though the applicant was distressed as a consequence of his dismissal, it was apparent to all that the negotiations were not taking place in a vacuum, but rather were occurring in the context of the possibility of legal proceedings for unlawful termination of employment. I am satisfied that the applicant understood the nature of the agreement being reached and its consequences.
I am satisfied that a binding settlement was reached in this matter on 19 February, 1996, consequently and without any consideration of the merits of the action, I dismiss the application made pursuant to s170EA of the Act.
I certify that this and the preceding seven (7) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 26 September 1996
APPEARANCES
Counsel appearing for the applicant : Ms. R. Doyle
Solicitors for the applicant : Harry Nowicki & Co.
Counsel appearing for the respondent : Mr. A. McNab
Solicitors for the respondent : Coltmans Price Bent
Date of hearing : 19 August 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1315 of 1996
B E T W E E N:
Frank FARRUGIA
Applicant
A N D
DYSON’S BUS SERVICES PTY LTD
Respondent
MINUTES OF ORDERS
26 September 1996 PARKINSON JR
THE COURT ORDERS THAT:
The application be dismissed
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
JURISDICTION - whether settlement had taken place - whether applicant was a party to settlement by action or agent -
Industrial Relations Act 1988, s170EA
FARRUGIA v DYSON’S BUS SERVICES PTY LTD
VI 1315 of 1996
Before: PARKINSON JR
Place: MELBOURNE
Date: 26 September 1996
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