Purdue and Ors. v Brown and Hatton Rural Pty Ltd
[1995] IRCA 411
•30 June 1995
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Alleged UNLAWFUL TERMINATION - Conciliation conference - Agreement for payment of compensation - Compensation not paid within a reasonable time - Notification of intention to relist applications in the Court - Subsequent payments directly into applicants' bank accounts - Whether there exist binding agreements for compromise of the claims.
Industrial Relations Act 1988, Part VIA Division 3
No. NI 0531 of 1994
KENNETH PURDUE and AWU-FIME v BROWN & HATTON RURAL PTY LTD
No NI 0533 OF 1994
PAUL ELLISON v WOODLANDS PIGGERY
No NI 0534 of 1994
PETER JACKSON and AWU-FIME v WOODLANDS PIGGERY
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 30 JUNE 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 0531 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN:KENNETH PURDUE
First Applicant
and
AWU-FIME
Second Applicant
AND: BROWN & HATTON RURAL PTY LTD
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 30 JUNE 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The matter be listed for hearing before a Judicial Registrar on the earliest available date.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 0533 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: PAUL ELLISON
Applicant
AND: WOODLANDS PIGGERY
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 30 JUNE 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
Subject to the applicant returning the payment made into his bank account, within seven days, to the respondent or such other entity as the solicitor for the respondent indicates to be the correct payee, the matter be listed for hearing before a Judicial Registrar on the earliest available date.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 0534 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: PETER JACKSON
First Applicant
and
AWU-FIME
Second Applicant
AND:WOODLANDS PIGGERY
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 30 JUNE 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
Subject to the applicant returning the payment made into his bank account, within seven days, to the respondent or such other entity as the solicitor for the respondent indicates to be the correct payee, the matter be listed for hearing before a Judicial Registrar on the earliest available date.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 0531 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN:KENNETH PURDUE
First Applicant
and
AWU-FIME
Second Applicant
AND: BROWN & HATTON RURAL PTY LTD
Respondent
No NI 0533 OF 1994
BETWEEN: PAUL ELLISON
Applicant
AND:WOODLANDS PIGGERY
Respondent
No NI 0534 of 1994
BETWEEN: PETER JACKSON
First Applicant
and
AWU-FIME
Second Applicant
AND:WOODLANDS PIGGERY
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 30 JUNE 1995
EXTEMPORE REASONS FOR JUDGMENT
WILCOX CJ: There are three matters before me this afternoon. They are all related. They are unlawful termination claims brought by three men who worked at a piggery in the Tamworth area. Two of the claims show the employer as Woodlands Piggery. The third shows the employer as Brown and Hatton Rural Pty Limited. It is not clear to me what is the correct name of the employer. There is evidence from Achilles Constantinidis, a director of another company, Brown and Hatton Group Pty Limited, that this company employed the three men. However, counsel for the applicants informs me that the inter-company structure is confused and he is not certain that Mr Constantinidis' claim is correct. At this stage, he therefore does not seek amendment of the respondent's name in any matter. The cases are before me because there is a dispute between the parties in each matter as to whether a binding agreement exists.
All the claims were filed on 12 July 1994. In accordance with usual procedure, the matters were referred to the Australian Industrial Relations Commission for conciliation. The conciliation was handled by Commissioner Connell. Commissioner Connell chaired a conference at Newcastle on 23 November 1994. The conference was attended by the three applicants and two union officers advising them, Donald Flanigan and Maurie Rudd. Mr Constantinidis attended on behalf of the named respondents.
It is common ground that, during the course of the conference, agreement was reached for settlement of each of the three matters. The settlement was on the basis, in the case of Mr Purdue, that he would be paid an amount of compensation equal to seven weeks pay and, in the case of the other two applicants, Paul Ellison and Peter Jackson, that they would each be paid an amount equal to five weeks pay. According to Mr Purdue - and the statement is not in dispute - after agreement was reached on the number of weeks pay, Mr Constantinidis said to the three applicants, "Have you guys still got the same bank account?" They each replied, "Yes." Mr Purdue then asked Mr Constantinidis to write down the number of weeks pay. Mr Constantinidis said words to the effect, "I do not want this on record as admission of unlawful dismissal." Commissioner Connell assured him that there were no records. The conference then concluded and the participants left.
Neither Mr Purdue nor Mr Constantinidis suggests that anything was said at the conference about execution of a deed of release, or other document, as a pre-condition of payment. Nor is there any suggestion of anything being said about the time that would elapse before payment was made. There was conversation on that subject, according to Mr Purdue, between himself, the other applicants and the two union representatives; but this was after the conciliation conference had finished and in the absence of Mr Constantinidis.
No money was paid to any of the applicants in the period immediately after the conciliation conference. After some weeks, Mr Purdue contacted Commissioner Connell about payment. Apparently, he spoke to Commissioner Connell on three occasions, but the Commissioner was unable to assist him. On 12 December he telephoned Mr Rudd. He asked Mr Rudd: "When are we going to get our money?" Mr Rudd replied: "Haven't you got it yet? I will get on to them straight away". Mr Purdue said that, on 15 December, Mr Rudd telephoned him and said: "The company won't pay you until you sign some papers". Mr Purdue replied: "What papers?" Mr Rudd replied: "Just some papers that the company want". Mr Purdue responded: "No one said anything about papers when we were at the conciliation, I'm not signing anything". No papers arrived and no payment was made.
On 28 December, Mr Purdue telephoned the piggery and asked for the supervisor, Anne Doyle. He said in evidence that he telephoned from his home at about 2.30pm. He spoke to a woman whom he understood to be Ms Doyle's secretary. He asked for Ms Doyle. The woman asked him who was calling. He gave his name and she left the telephone. When she returned to the telephone, the woman said to Mr Purdue, "You've just missed her". Mr Purdue said, "Tell her that I've rung. The union told us to contact Anne Doyle. If you don't get back to us this afternoon I'll try and get the matter back into court".
Mr Purdue did not hear anything more that day. That evening, apparently, he sent to this Court a letter, signed by himself, Mr Ellison and Mr Jackson, requesting that the three matters "should now go before a higher court". His letter referred to the conciliation before Commissioner Connell. I think the letter is quite clear, although it is not technically correct: satisfaction had not been achieved from the conciliation hearing and the writers wanted the matters to go before a court with authority to determine them. In other words, the settlement agreements were at an end.
As a result of this letter, Mr Purdue's matter was listed before a Judicial Registrar on 19 January. In the meantime, money was paid into the bank accounts of all three applicants. The evidence does not suggest they were made aware of these payments. Indeed, Mr Purdue specifically denied knowledge of the payment.
On 19 January the Judicial Registrar ordered that the three matters be listed for directions on 14 February. Before that day, it was decided that the matters should go before a Judge. They came before me on 10 February. By that time Mr Purdue had become aware of the fact that money had been paid into his bank account. Counsel informed me of this and gave an undertaking on behalf of his client to re-pay the money to Brown and Hatton Group Pty Limited, or such other company as the solicitor for the respondent indicated was the actual payer of the money. Payment was to be made within seven days. I understand this undertaking was complied with. Apparently, through an oversight, the same course was not taken in respect of Mr Ellison and Mr Jackson. But Mr Howen, counsel for the applicants, undertakes that this will be done.
Despite the repayment by Mr Purdue, the respondents maintained their contention that all three claims are the subject of binding agreements and the applicants are entitled only to the agreed sums. They said the applicants are not entitled to litigate their original claims. This contention was disputed by the applicants. In order to resolve the issue, Notices of Motion were filed. These Notices of Motion are before me today. They were adjourned pending a mediation between the parties. This proved unsuccessful.
The question I have to determine is whether or not binding agreements exist, in all or some of the cases. If binding agreements exist, the parties are limited to their rights under them, irrespective whether a particular party views the terms as good or bad. The applicants would be entitled to no more than they agreed to take and the respondent would be obliged to reinstate the payments. To the extent that there are not binding agreements, the matters are not settled; and there is no reason why the original claims should not proceed to hearing in the normal way.
On my analysis of the facts, binding agreements came into existence at the conciliation conference on 23 November. Each applicant then agreed to compromise his claim in return for payment of a sum of money calculated in an agreed way. Nothing was said about time for payment. But, where nothing is said about time of performance of a contract, the law implies a term that there will be performance within a reasonable time.
What constitutes a reasonable time for a payment of money, in performance of a contractual obligation, depends upon the circumstances of the case. In some cases a reasonable time would extend beyond the period of five weeks that elapsed between the agreements on 23 November and the conversation of 28 December. However, the amount of money required to be paid to each applicant was small. It seems to have been about $2,000. No particular technicality needed attention. There was no need for a deed of release. The moneys were being paid in compensation for terminations of employment as long ago as 30 June 1994. Apparently, all the applicants remained unemployed. It would have been apparent to every one at the conciliation conference that they needed the money quickly; especially, perhaps, with Christmas approaching. Moreover, Mr Constantinidis had checked that the applicants still had their old bank accounts. He knew he could easily and quickly pay the agreed sums; and this would have been apparent to the applicants. Considering the matter objectively, it seems to me that a reasonable time for making the payments had expired by 28 December, when Mr Purdue attempted to contact Ms Doyle. I think that, on that day, Mr Purdue was entitled to act on the basis that there had been a breach by the employer of the agreements negotiated on its behalf by Mr Constantinidis.
It is clear, both from the history of the matter and the terms of the conversation of 28 December, that Mr Purdue telephoned that day, not only on his own behalf but also on behalf of Mr Ellison and Mr Jackson.
Mr Purdue left a message for Ms Doyle which, in my view, constituted a notification that, unless she rang him back that day, he and his fellow-applicants would treat the agreements as being at an end. If Mr Purdue accepted the continuing existence of binding agreements, it would have been absurd to talk of getting the matters back into court. Hearing nothing further that day, the applicants wrote immediately a letter for the purpose of restoring their cases to the Court's list. Subsequently, money was paid into the bank accounts of all three applicants. But this was done without their knowledge or involvement. This is not a case where cheques were sent to them and they elected to bank them. The money was paid directly into their bank accounts. They did not know it had been paid. Accordingly, I do not think that there was any waiver of the position taken on 28 December.
It follows from all this that, in my view, there is no continuing agreement between any of the applicants and the employer. The parties are in the same situation as if the agreements negotiated at the conference presided over by Commissioner Connell had never come into existence. As it is clear that the parties are unlikely to reach agreement in respect of the claims, the appropriate course is for me to direct that all three matters be listed for hearing before a Judicial Registrar on the earliest available date. The three matters should be heard together because the issues overlap. The Judicial Registrar will be concerned with the alleged unlawfulness of the terminations of employment and, if unlawful termination is made out, the remedy to be granted. The Judicial Registrar will not be concerned with the agreement negotiated before Commissioner Connell or subsequent events.
Having regard to what I have been told by Mr Howen about Mr Jackson and Mr Ellison having not yet returned the payments, the direction that I make is subject to repayment of those sums of money within seven days, to the respondent named in their cases or such other entity as the solicitor for the respondent indicates to be the correct payee.
[Counsel applied for costs.]
Mr Howen, on behalf of the applicants, seeks an order for costs; but I think s.347 of the Industrial Relations Act precludes the making of such an order. The proceedings before the Court at the present time are the notices of motions filed by his client asking that the matters be listed before a Judicial Registrar for hearing. Those proceedings are clearly proceedings in matters arising out of the Industrial Relations Act, namely the unlawful termination claims. Consequently, s.347 forbids the making of costs orders.
I make the orders previously indicated. The solicitors should take steps to have the matters listed before a Judicial Registrar as soon as possible.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of
Chief Justice Wilcox.
Associate:
Dated: 30 June 1995
APPEARANCES
Counsel for the Applicant: A S Howen
Solicitor for the Applicant: Paul Etherington & Associate
Counsel for the Respondent: E Wilcox
Solicitor for the Respondent: Gadens Ridgeway
Date of hearing: 30 June 1995
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