Mouketo v State of Queensland (Metro South Hospital and Health Service)
[2016] QIRC 44
•15 April 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Mouketo v State of Queensland (Metro South Hospital and Health Service) [2016] QIRC 044 |
PARTIES: | Mouketo, Yolanda Nganga v State of Queensland (Metro South Hospital and Health Service) |
CASE NO: | TD/2016/4 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 15 April 2016 |
CONFERENCE DATES: | 29 January and 17 March 2016 |
MEMBER: | Deputy President Kaufman |
ORDER: | 1. Application for certificate under section 75 of the Industrial Relations Act 1999 be refused |
| CATCHWORDS: | Termination of employment – whether completed settlement – refraining from further dealing with a matter – refusal to issue certificate |
| CASES: | Masters v Cameron (1954) 91 CLR 360 |
| APPEARANCES: | Ms Yolanda Nganga Moukto, the applicant in person. Mr Georges Khoury, Acting Director Industrial Relations, Metro South Health. |
Decision
A conference in this matter was initially held on 29 January 2016. At that conference the applicant, Ms Mouketo, agreed to receive a payment to settle her application. The agreement reached also included the usual stipulations that one would expect to find in a settlement for a reinstatement application, namely: that a certificate of service be issued, that the terms of the settlement be kept confidential, that the agreement comprise the full and final settlement of any and all claims arising out of the employee's dismissal, etc. That agreement was arrived at after some negotiation between the parties.
I informed the parties, after the agreement had been struck, that that ended the matter, Ms Mouketo and the State acknowledged this. A deed of settlement, reflecting the agreement, was to be drawn up by Ms Mouketo's former employer, the Metro South Hospital and Health Service, which would reflect the terms of the agreement reached in the conference. I told the parties that the agreement reached in the conference was not an 'in principle' agreement but an agreement that had settled the matter entirely.
Sometime later I was informed that Ms Mouketo had refused to sign the deed of settlement. It appeared that she had reneged on the settlement. Ms Mouketo advised my associate that she would like to proceed to have the matter dealt with by arbitration.
I convened a further conference on 17 March 2016.
During the March conference I provided to each of the parties a copy of Mr Hien Ngoc Dang v Worley Parsons Resource & Energy, a decision of the Australian Industrial Relations Commission, as it then was.[1] That decision summarizes the state of the law in relation to agreements reached in conferences, I have extracted the relevant portion below:
[10] This case is similar to that of Zoiti-Licastro v Australian Taxation Office[2] where a full bench upheld a finding that an agreement reached between counsel that did not expressly refer to “mutual releases by both parties in the usual terms” and that was made “subject to written terms” nevertheless amounted to a completed agreement.
[11] “Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
“In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common…
“Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own. The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document … or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed. These possibilities were both referred to in Rossiter v. Miller. Lord O'Hagan said: ‘Undoubtedly, if any prospective contract, involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and a dissatisfied party may refuse to proceed. But when an agreement embracing all the particulars essential for finality and completeness, even though it may be desired to reduce it to shape by a solicitor, is such that those particulars must remain unchanged, it is not, in my mind, less coercive because of the technical formality which remains to be made.’”[3]
[12] This case falls comfortably within the first category; there was a concluded agreement reached at the conciliation conference on 16 January 2009. The parties had agreed to all the terms of their bargain and intended to be bound by it immediately. The deed was intended only to restate the agreement more formally in fuller terms.
[1] Mr Hien Ngoc Dang v Worley Parsons Resource & Energy [2009] AIRC 513, 29 May 2009.
[2] Zoiti-Licastro v Australian Taxation Office PR967544, 25 January 2006.
[3] Masters v Cameron (1954) 91 CLR 360, 362 (citations omitted).
Likewise, I find that Ms Mouketo's reinstatement application, and the agreement reached in the January conference, fall squarely within the first category of cases outlined above and for the reasons outlined above.
I exercise my discretion under s 331(b)(ii) of the Industrial Relations Act 1999 (Qld) and refrain from further dealing with the matter. I will not issue a certificate under s 75 as the matter has been settled.
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