State of Queensland (Department of Education, Training and Employment) v Hennigan

[2014] QIRC 76

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Department of Education,
Training and Employment) v Hennigan [2014] QIRC 076
PARTIES:	State of Queensland (Department of Education,
Training and Employment)
(Applicant)
v
Hennigan, Peter
(Respondent)
CASE NO:	B/2014/9
PROCEEDING:	Application to dismiss proceeding AT/2014/2
DELIVERED ON:	11 April 2014
HEARING DATE:	11 April 2014
MEMBER:	Deputy President O'Connor
ORDERS:	1.  The appeal, being AT/2014/2, is dismissed.
CATCHWORDS:	DECISIONS GENERALLY - APPLICATION TO DISMISS APPEAL - Where the respondent had entered into a deed of release with his former employer confirming that he would not pursue any claims against his former employer arising out of that cancellation - Where the respondent nevertheless appealed against the cancellation of his training contract - Where the applicant applied to have the respondent's appeal dismissed on the grounds that further proceedings by the Commission are not necessary or desirable in the public interest
CASES:	Industrial Relations Act 1999, s 331(b)(ii) Vocational Education and Employment Act 2000, s 61(1)
APPEARANCES:	Mr A. Lythall, for the applicant.
Mr P. Hennigan, the respondent, in person.

"I propose to give my decision this afternoon, to give it ex tempore. This is an application by the Department of Education, Training and Employment to dismiss application AT/2014/2, pursuant to s 331 of the Industrial Relations Act 1999. Application AT/2014/2 is an application by Peter Hennigan to appeal the cancellation of his training contract as a trainee laboratory technician with Rocla Pty Ltd, his employer.

In his application to appeal, Mr Hennigan raises three grounds of appeal. They are:

(a)	there was no mutual agreement to cancel training contract (registered number 201415303);
(b)	the deed of release which is relied upon by DETE (as the mutual agreement to cancel) was entered into by the appellant by the use of coercion; and
(c)	the deed of release which is relied on by DETE (as the mutual agreement to cancel) is void, as per the Industrial Relations Act 1999, and on public policy grounds.

Mr Hennigan, as the appellant, sought a decision to overturn the cancellation of the training agreement and to reinstate that training contract. It is not necessary to go through a full history of the matter before the Commission, but what is necessary to deal with is some factual grounds which help to put the application before the Commission into some context.

On 8 November 2013, Rocla Pty Ltd submitted a single party cancellation to DETE of the training contract for the training of Mr Hennigan, which was effective as of 1 November 2013 and signed on 25 November 2013. Mr Hennigan had commenced employment as a trainee laboratory technician with Rocla Pty Ltd on 30 July 2013, with a nominal expiry of 28 July 2014. Upon the cancellation of the training contract, an investigation was undertaken by the delegated officers of DETE. Mr Hennigan advised DETE that he was not agreeable to the cancellation, and he further advised that, despite accepting a redundancy from Rocla Pty Ltd, he was progressing an unfair dismissal application before the Fair Work Commission.

Due to Mr Hennigan advising that he was lodging an unfair dismissal application with the Fair Work Commission, the DETE officers awaited for the final outcome of the Fair Work process before taking the matter further. At some point in time, and following some negotiations and prior to the outcome of those proceedings, a deed of settlement was prepared by Clayton Utz on behalf of Mr Hennigan's employer.

That deed of settlement, which is before the Commission, provided for the following: under clause 2.1(a), Cancellation of the Training Contract, the employee (Mr Hennigan) agreed to cancel the training contract, with effect from 1 November 2013; under clause 2.2, Mr Hennigan, in complying with clause 2.1, would receive a payment of $27,251.42 (gross) as a redundancy payment (less applicable tax, which results in a net payment of $19,771.42).

The deed of release further provided that Mr Hennigan, as the employee:

'would agree not to make, take institute or maintain any claims against the employer, its related bodies corporate, employees, officers and agents (including proceeding and FWO complaint) respective to the matters referred to in this deed.'

In the statement of Mr Hennigan, dated 6 April 2014, Mr Hennigan advises, at
paragraph 31, as follows:

'I signed the deed of release and returned it via email. A few days after Christmas, my family and myself went on a road trip to Sydney and Melbourne. I took the two employment contracts with me. I spent many a late night, trying to work out how I could prove the employment contract from 14th of October, was a forgery.'

He further says, at paragraph 38 of his statement:

'I received notification in late January 2014 that DETE Queensland had cancelled the training contract, on the basis that it was a mutual agreement to cancel the training contract (my mutual agreement being that I signed the deed of release).'

He further states that on the Friday, the 7th of February – that he filed a notice of

appeal in this Commission. Under the Vocational Education, Training and

Employment Act 2000, in particular, s 61(1):

'The parties to a training contract may cancel it at any time, if they agree in
writing to its cancellation.'

Having considered the submissions by both the applicant and the respondent in these proceedings, I have formed the view that the deed of release entered into between Rocla Pty Ltd and Mr Hennigan effectively brought to an end the training contract, pursuant to s 61(1) of the Vocational Education, Training and Employment Act 2000. Accordingly, Mr Hennigan is prohibited, under that Act, from bringing an appeal to the Commission.

I also find that the deed of release was sufficient to release both Rocla Pty Ltd and to confirm the conclusion of the training contract, and therefore it is not possible for the applicant to pursue his claim in the Commission under the matter of AT/2014/2. I find no evidence to support the assertion, contained within the application to appeal, that there was any use of coercion, and indeed, it seems to me, from the evidence given by

the applicant, that the allegation of coercion did not apply to the – did not apply in

respect of the signing of the deed of settlement in respect of the training contract.

I further find that, in relation to the deed of release which is relied upon by the applicant in these proceedings is not void, pursuant to the Industrial Relations Act 1999, or on public policy grounds, as submitted by the respondent. The respondent has put no evidence or cogent argument before the Commission to support such an assertion. Having regard to all matters that have been put to the Commission, I have formed the view that this is an appropriate matter in which I should exercise my discretion, pursuant to the Industrial Relations Act 1999 and, in particular, the provisions of s 331(b)(ii), which gives the Commission the power to dismiss a cause if it is not in the public interest to pursue the case further.

Having considered the arguments advanced by the respondent in relation to his appeal, I'm of the view that there is no public interest in permitting that appeal to progress any further, and accordingly, by virtue of s 331(b)(ii) of the Industrial Relations Act 1999, I order that the appeal, being AT/2014/2, be dismissed."

Report on Decision (as edited)

In giving his decision from the bench on 11 April 2014, Deputy President O'Connor stated: