Ms Denise Rostirolla v Commonwealth Bank of Australia Limited

[2012] FWA 6872

[2012] FWA 6872

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Ms Denise Rostirolla
v
Commonwealth Bank of Australia Limited
(U2006/6705)

COMMISSIONER DEEGAN CANBERRA, 16 AUGUST 2012

Conciliation settlement, signed settlement deed, no notice of discontinuance, application to proceed to arbitration

[1] On 17 November 2006 Ms Denise Rostirolla (the applicant) lodged an application pursuant to s.643 of the Workplace Relations Act 1996 (the WR Act) seeking relief in respect of an alleged termination of her employment by the Commonwealth Bank of Australia (the employer).

[2] On 21 December 2006, following conciliation in the Australian Industrial Relations Commission (AIRC), the applicant and the employer signed a deed of settlement. On 30 January 2012 the applicant requested, by email, that the file relating to her application be reopened, stating that she had never filed a “closure form” and wished to have her case heard.

[3] A short chronology of the events of late 2006 and early 2007 follows:

• On 31 August 2006 the applicant was notified by her employer that she was under investigation concerning a number of serious work related breaches that constituted serious misconduct;



• During September and October 2006 settlement negotiations were conducted between the employer and the applicant’s union, acting on her behalf;



• Although the union considered an agreement had been reached between the applicant and the employer, the applicant refused to sign the deed of settlement that was prepared. As a result the applicant lodged the application on 17 November 2006;



• The matter was listed for conciliation on 21 December 2006;



• A settlement of the matter was reached at the conciliation and a deed of release was executed by the applicant and the employer;



• Documents were then exchanged between the parties as the settlement was effected;



• On 8 February 2007 the applicant contacted the AIRC claiming that the settlement had not yet been completed as she had not received her final payslip and a correct statement of service;



• On 19 February 2007 the applicant advised the AIRC that she had contacted her employer about the outstanding issues;



• On 20 April 2007 a letter was sent to the applicant requesting that she file a Notice of Discontinuance. This letter advised the applicant that if no Notice of Discontinuance was filed, unless she requested a relisting of the matter by 30 April the matter would be deemed discontinued;



• At the applicant’s request the matter was listed for a further conciliation conference on 11 May 2007;



• On 7 May 2007 the applicant advised that the employer was dealing with her concerns and requested that the conciliation conference be put off for a month so as “not to waste the Commissioner’s time” ;



• The conference was cancelled and relisted for 15 June 2007;



• On 13 June the employer forwarded a number of documents to the AIRC detailing the steps taken by the employer to meet all the requirements of the deed of settlement and noting that the employer considered that the settlement had been effected;



• Following the provision of these documents the parties requested that the conference for 15 June be cancelled;



• Nothing further was heard from the parties and on 3 July 2007 the file was closed.

[4] Following the applicant’s request of 30 January 2012, the file in this matter was retrieved from archives and Fair Work Australia (FWA) attempted to contact the employer regarding the application made to have the file reopened. . The person who had had carriage of the matter for the employer had ceased employment with the employer three years earlier. A new contact person from the employer was identified and the matter was listed for a directions hearing on 5 March 2012 to deal with the application made by the applicant for the matter to proceed.

[5] On 28 February 2012 the applicant advised that she could not appear on the hearing date as she had lost her car in a flood and needed a month to sort out the insurance and recover. As the employer did not object, the matter was relisted for a directions hearing on 23 April.

[6] At the hearing the applicant was asked why she had requested that the file be reopened. The applicant stated:

“I’ve asked it to be reopened because when I was resigned by the Commonwealth Bank, I did not resign; they resigned me. I was ill. It turns out I had multiple sclerosis; I have multiple sclerosis. Therefore, upon me leaving the bank, there are certain benefits that are allowed to me which I would now like to claim.” 1

[7] The applicant appeared to claim that the she had been shocked to find that the employer had “resigned her” 2. She was reminded that she had signed a deed of release on 21 December 2006 and pursuant to the terms of that deed, she had provided a letter of resignation to the employer, a copy of which, together with the deed was on the AIRC file. It was also noted that the correspondence which she sent to the employer and copied to the AIRC in early 2007 was concerned only with the content of her final payslips and the format of the statements of service provided by the employer pursuant to the terms of the deed.

[8] The applicant responded that she had been “wrongfully resigned” 3 and that she wished to have the deed of release set aside as she had been rushed and was not accompanied by a solicitor when she signed it4.

[9] The applicant was also advised of additional correspondence on the AIRC file which appeared to demonstrate that the employer had met the terms of the deed of settlement. The applicant claimed that she had not been provided with a certificate of service by the employer as required under the deed. When advised that the file disclosed copies of statements of service that the employer claimed to have provided to her, the applicant claimed that these were letters not “certificates” 5 and that she had wanted them in certificate form6. The applicant also claimed that the deed had given her nothing but the long service leave to which she was entitled. When advised that the deed clearly stated that she had been paid a sum in addition to her entitlement to long service leave she stated that she did not recall receiving the payment.

[10] The applicant also claimed that she had felt pressured into signing the deed at the conciliation conference on 21 December 2006 7.

[11] The applicant stated that although on 30 January 2012 she had requested that the file in the matter be retrieved to enable her to peruse it she had not by the date of the directions hearing had the opportunity to do so 8. She stated that she had been unwell.9

[12] The employer position was that it objected to the application, that it would be opposing the reopening of the matter and that it would be seeking costs against the applicant. The representative from the employer also indicated that it would be seeking repayment from the applicant of monies paid to her under the deed should the matter proceed.

[13] As the applicant indicated that she wished to pursue the application for the file to be reopened and for the deed to be set aside, the hearing was adjourned to allow her time to peruse the file and take legal advice. It was suggested to the applicant that perusing the file might refresh her memory as to the terms of the deed and the monies paid to her by her employer in accordance with those terms.

[14] Following the directions hearing the matter was listed for a jurisdiction hearing to determine if the jurisdiction existed for FWA to reopen the file and proceed with the case in circumstances where there was an executed deed of release, with which, it appeared, the employer had fully complied. This hearing was listed to take place on 15 May 2012.

[15] On 14 May 2012, the jurisdiction hearing was cancelled as the applicant advised FWA by email that she was ill.

[16] On 5 June 2012 the applicant was advised that the matter would be relisted. On 7 June 2012 the matter was relisted with the hearing to take place on 27 June 2012

[17] On 26 June the applicant provided medical certificates indicating that she would be unable to appear the following day. One certificate covered the applicant’s inability to attend on 15 May 2012. The other certificate, dated 5 June 2012 (two days before the matter was listed for 27 June) covering the period 15 June to 15 July.

[18] On 26 June 2012 directions were issued for the parties to provide written submissions on the jurisdictional question. The employer was directed to provide submissions by 10 July and the applicant directed to respond by 24 July. The employer submissions were filed on 11 July due to a misunderstanding. Consequently the applicant was advised that she had until 25 July to file her response. On 25 July 2012 the applicant sent an email indicating that the email notifying the additional day for her response had not attached the employer submissions. The applicant was reminded that the employer submissions had been served directly on her by the employer on 11 July.

[19] On 26 July the applicant advised that she had been confused by the change to the directions and requested additional time in which to file her submissions. Additional time was granted and the applicant informed that her submissions had to be filed by close of business on 9 August 2012.

[20] On 9 August 2012 the applicant advised that she had injured her hand and was ill. She requested further time for filing. A medical certificate stating that she would be “unfit for typing or writing” from 4 August to 4 September was attached. The medical certificate was dated 4 August.

[21] On 9 August the applicant was advised that I would not permit any further extension for the filing of the submissions.

[22] The employer, in submissions filed in accordance with directions, noted the terms of the deed provided that the employer would pay the applicant 12 weeks pay in excess of her contractual and statutory entitlements, accept the applicant’s resignation and provide her with a statement of service. In return the applicant gave the employer a total release against all claims against the employer arising out of her employment and the termination. The employer stated that it had complied with its obligations under the deed. While the applicant had signed the deed and provided a letter of resignation, she had not filed a notice of discontinuance with the AIRC as required by the deed.

[23] The employer submitted that Fair Work Australia does not have the jurisdiction to deal with the application as the deed is a complete bar to the claim. According to the employer FWA is unable to issue a certificate pursuant to s. 650(2) of the WR Act as it has no jurisdiction to hear the claim. The employer relied on a number of decisions 10 to support the contention that the application should not be permitted to proceed where the applicant has signed a deed of release barring all further actions.

[24] It was also put for the employer that there was no substance to the applicant’s claim that she had signed the deed under duress noting that the deed contained a clause warranting that the applicant had had an opportunity to seek legal advice before signing. In addition it was put that the applicant did not have to sign the deed and it was open to her to continue with her proceedings in the AIRC.

[25] Finally it was put for the employer that the deed had been the culmination of more than two months negotiations including negotiations when the applicant was represented by her union.

[26] When filing the submissions the employer also filed a motion to dismiss the applicant’s application as frivolous and vexatious.

Consideration and Conclusion

[27] The applicant seeks to proceed with her application for unfair dismissal that was made on 17 November 2006. This application was the subject to a deed of settlement executed by the applicant and the employer on 21 December 2006.

[28] The application was made pursuant to s.643 of the WR Act 2006. As a result of the transitional provisions attaching to the introduction of the Fair Work Act 2009 the application must be dealt with under the provisions of the WR Act.

[29] Section 650 of the WR Act provides as follows

650 Conciliation

(1) When an application is lodged with the Commission, the Commission must attempt to settle the matter to which the application relates by conciliation.

(2) If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application, the Commission:

(a) must issue a certificate in writing stating that it is so satisfied in respect of that ground or each such ground; and

(b) must indicate to the parties the Commission’s assessment of the merits of the application in so far as it relates to that ground or to each such ground; and

(c) if the Commission thinks fit, may recommend that the applicant elect not to pursue a ground or grounds of the application (whether or not also recommending other means of resolving the matter); and

(d) if the Commission considers, having regard to all the materials before the Commission, that the application has no reasonable prospect of success, it must advise the parties accordingly.

(3) If:

(a) the ground or one of the grounds of the application is the ground referred to in paragraph 643(1)(a); and

(b) the Commission has indicated that the applicant’s claim in respect of the ground so referred has no reasonable prospect of success;

the Commission must invite the applicant to provide further information in support of that ground within a period specified by the Commission.

(4) If, in relation to an application to which subsection (3) applies:

(a) the applicant does not provide further information regarding the applicant’s claim in respect of the ground referred to in paragraph 643(1)(a); or

(b) after consideration of the original application and the further material provided by the applicant in support of that ground;

the Commission concludes that the application has no reasonable prospect of success at arbitration, it must issue a certificate to that effect.

(5) If the Commission issues a certificate under subsection (4) in respect of an applicant’s claim in respect of the ground referred to in paragraph 643(1)(a), the application is dismissed, insofar as it relates to that ground, with effect from the date of issue of the certificate.

[30] After conciliation of a matter under s.650, no further action can be taken by the applicant unless a certificate is issued in accordance with section 650(2)(a). It is not open to me, as the member who conducted the conciliation, to issue the certificate unless I am satisfied that “all reasonable attempts to settle the matter are, or are likely to be, unsuccessful so far as at least one ground of the application in concerned”

[31] A deed of release was executed by the parties in this matter. In these circumstances I am not satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as concerns at least one ground of the application. Clearly all grounds of the application were settled by the execution of the deed.

[32] I do not accept the claim made, at the directions hearing, that the applicant was under duress to sign the deed. The applicant signed the deed and accepted the money paid to her under the deed by the employer. There was some correspondence between the parties in the months following the settlement. The only matters raised in the correspondence went to the provision of a final pay slip, the calculation of outstanding long service leave and the form in which statements of service were provided. Nothing in the correspondence exchange suggested that the applicant had felt under pressure to sign the deed; wished to challenge its validity, or that the money due to her under the terms of the deed had not been paid. As noted in [3] above, a number of opportunities were presented to the applicant to have the matter dealt with further in early 2007. She did not take advantage of any of these

[33] The applicant has not filed any submissions in support of her application to have the matter proceed. She was served with the respondent’s submissions on 11 July 2012 and despite being given two extensions of time in which to do so, did not file any response.

[34] I note that the applicant has provided several medical certificates when seeking adjournments or additional time to file her submissions. While I do not doubt the veracity of those certificates I have reached the view that sufficient time was provided to her to enable her to respond to the employer’s submissions. The applicant was aware on 7 June 2012 that she would need to prepare a case in support of her application. By 26 June she was aware that she would need to provide written submissions in support of her application. The medical certificate provided from early May stated that the applicant needed time to seek legal advice. Despite being granted a number of adjournments and being afforded an additional two weeks of time in which to file her submissions, the applicant failed to do so. The applicant was served with the submissions of the employer on 11 July. The medical certificate she supplied referred only to her inability to comply for the period from 4 August 2012.

[35] This matter should not be allowed to drag on further. The applicant states that she has been diagnosed with a debilitating medical condition. This is clearly unfortunate but it is not grounds for allowing her to set aside a deed she freely entered into five years earlier. It is unfair to the employer that it be put to the time and expense of defending the claim. This is particularly so given that the applicant benefited from the terms of the deed and appears to be the only party who did not abide by its terms.

[36] Correspondence sent to my chambers by the applicant suggests that the delay in the finalisation of this matter has been used delay other proceedings in which she is involved with her former employer, but which appear to be unrelated to the employment relationship. While the applicant may prefer that the matter be delayed further, it is appropriate that the matter be finalised.

[37] I find that there is no jurisdiction for the issue of a certificate pursuant to s.650 (2) (a) of the WR Act. The deed of release signed by the applicant on 21 December 2006 is a total bar to any further proceedings in relation to her application lodged under s.643 of the WR Act. There are no grounds for setting aside the deed of release, even were such an avenue available to me.

[38] On 11 July the employer lodged an application to dismiss this application. Given my decision in the matter it is unnecessary to deal with that application.

[39] The application to reopen the s.643 application and have a s.650 certificate issued is dismissed.

COMMISSIONER

 1   Transcript PN 8

 2   Transcript PN 47

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 10 J Le Good v Stork Electrical Pty Ltd (1999) 95 IR 1; Tunbridge v Linde Material Handling Pty Ltd [1997] IRCA 40; Staples v Allen Allen & Hemsley [2000] QIRComm 106; Thomas v Logica Pty Ltd [PR93337]

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