Thiele v Trustech Building Systems Pty Limited

[1996] IRCA 309

DECISION NO:  309/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - whether pre-trial agreement constitutes settlement of claim.

Industrial Relations Act 1988 S 170EA.

Gregory Robert THIELE -v- TRUSTECH BUILDING SYSTEMS PTY LIMITED 
VI 4772 of 1995

BEFORE:        R. D. FARRELL JR
PLACE:           MELBOURNE
DATE:             17 June 1996

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         No. VI 4772 of 1995

BETWEEN:  Gregory Robert THIELE
  -         Applicant

AND:  TRUSTECH BUILDING   SYSTEMS PTY LIMITED
               -         Respondent

MINUTE OF ORDERS

BEFORE:                R. D. FARRELL JR

PLACE:                   MELBOURNE

DATE:  17 June 1996

THE COURT ORDERS THAT:

1.         The application is dismissed.

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

VI 4772 of 1995

BETWEEN:

Gregory Robert THIELE
Applicant

AND:

TRUSTECH BUILDING SYSTEMS PTY LIMITED
Respondent

REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)

17 June 1996  R. D. FARRELL JR

1. This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Gregory Robert Thiele (“Mr Thiele”), by the respondent, Trustech Building Systems Pty Ltd (“Trustech”). Reinstatement was not sought.

1. Mr Thiele also seeks damages for the loss of tools left by him at Trustech’s premises. I am satisfied this claim comes within the associated jurisdiction conferred by the Act. There is no claim in relation to amounts paid in lieu of notice or any other accrued entitlements.

Findings as to the Facts

1. Mr Thiele had been an employee of Trustech for just less than a year at the time of his dismissal. Mr Thiele had worked directly or indirectly with Trustech for some three years prior to his employment but he agrees he had worked as a contractor rather than as an employee at that time.

1. About six months into his employment, Mr Thiele was promoted to the position of team leader. In order for that to occur, it was necessary for him to agree to use many of his own tools, which he already owned from his previous time as a contractor, to complete the team’s work. This was a short term arrangement, and arrangements were put in place for Trustech to replace those tools over time.

1. At about Easter 1995, Mr Thiele was informed by Trustech’s Managing Director, Mr Kerr, that it was necessary for Trustech to “put off” Mr Thiele and another employee with whom he worked, because the business had been incurring some losses. They were paid one week's pay in lieu of notice and it was made clear to them that there would be the real possibility of further work being made available for them, but as contractors rather than as employees.

1. It was not in dispute that Mr Thiele had some months earlier expressed an interest in returning to the status of contractor, rather than continuing as an employee. Mr Thiele points out, however, that this was said in the context of salary negotiations.

1. Mr Thiele had a company car, so Mr Kerr paid for a taxi to take Mr Thiele home. It was necessary for Mr Thiele to leave the tools that he had provided at Trustech’s premises and an arrangement was made for him to return to work the following day to collect those tools and to return a welder which he had in his possession which belonged to Trustech.

2. Because of difficulties with transport, Mr Thiele was unable to get back to Trustech to collect the tools until a Saturday following his dismissal, which was at least three days after the dismissal and possibly longer. He did not forewarn the company of his arrival and, as it happened, Mr Kerr was not present at the company’s premises on that Saturday. The company was not prepared to hand over tools to Mr Thiele unless Mr Kerr was there to verify that it was not company property being handed over. The inspection of the tool trailer in which the tools were kept did not ultimately occur until some four weeks following the dismissal. By that stage, it appeared to Mr Thiele that most of the tools were missing from the trailer. A dispute ensued between Mr Thiele and Mr Kerr, following which it is fair to say that the relationship had irrevocably broken down.

1. While I have summarised the facts to give the background to the case, the initial matter I must decide really arises from what happened after that dispute.

Negotiations following Termination

1. Because there was a breakdown in the relationship between Mr Thiele and Mr Kerr following that argument, it became difficult for them to sensibly discuss the possible resolution of the disputes between them.

1. In about September 1995, Mr Thiele commenced proceedings in this court. There was no applicable time limit for filing the application because there was no written advice of termination. The matter was set down for conciliation on a number of days. Ultimately, the Industrial Relations Commission failed to resolve the matter in conciliation, largely due to the inability of both parties to appear at the same time in the conciliation proceedings.

1. However, some informal attempts were made by Mr Thiele to reach an agreed settlement of the matter, firstly, through a work colleague and, finally, through his stepfather, Mr Cullen. The end result of these negotiations was that Mr Kerr handed over to Mr Cullen a cheque made payable to Mr Thiele for $1300, and Mr Cullen returned to Mr Kerr the arc welder which had been in Mr Thiele's possession.

1. It is necessary that I make findings as to the content of those negotiations, and as to the effect of Mr Thiele accepting the $1300 from Mr Kerr. Mr Kerr says that the cheque was given in full and final settlement of the matter and that the accepting of the cheque by Mr Cullen on Mr Thiele’s behalf provides him with a full defence to the claims in this court. Mr Thiele’s position might fairly be summarised as being that he regarded the cheque for $1300 as an instalment of the money which he believed he was ultimately due from Trustech out of these proceedings.

1. I heard evidence from Mr Kerr, from Mr Thiele and also from Mr Cullen, Mr Thiele's stepfather. Mr Cullen’s evidence was taken by telephone, by consent of the parties.

1. Mr Thiele's evidence was that he told Mr Cullen prior to the negotiations that Mr Cullen should get what he could from Mr Kerr. He agreed that Mr Cullen was given authority to “cut a deal” without having to come back to Mr Thiele for his consent to the terms of the agreement. Mr Thiele explains that he was trying to set himself up again in the building industry which was the work that he wanted to get back to doing and he needed the money, or at least some of the money. That was why he was prepared to accept less at that stage than the full amount he was seeking in the proceedings.

1. Having heard Mr Cullen’s evidence, he was, in my view, clearly troubled by his inability to remember, with the passage of time, what exactly happened in the negotiations. He recalls that Mr Thiele gave him a list of the missing tools, and of the value that Mr Thiele ascribed to each of those tools. He did not recall the instruction from Mr Thiele to “get what he could” from Mr Kerr.

1. To the extent that the evidence of Mr Thiele and Mr Cullen differs, I prefer the evidence of Mr Thiele. This is  largely because I am confident that Mr Thiele's recollection of his discussions with his stepfather is better than his stepfather's recollection.

1. Mr Kerr's evidence was that Mr Cullen introduced himself to Mr Kerr, probably in the course of a telephone conversation, as playing something like an honest broker role between Mr Kerr and Mr Thiele. Mr Kerr certainly found that he could deal with Mr Cullen more easily than he could deal with Mr Thiele and that Mr Cullen was prepared to discuss matters quietly and sensibly. Mr Kerr described the discussion that ultimately took place face to face on 14 February 1996 in his office. He says that during this discussion between he and Mr Cullen there was some bartering and that ultimately he settled on the figure of $1300. The description of how they got to that figure differs between Mr Kerr and Mr Cullen, and again I prefer the evidence of Mr Kerr to that of Mr Cullen, primarily because again I had concerns about the quality of Mr Cullen's recollection.

1. I do not doubt Mr Cullen was trying to give as honest an account as he could of the events in which he was involved, but it was quite clear that he had a very shaky recollection of what had happened. Therefore, to the extent that there are differences between them, generally I prefer the evidence of Mr Kerr. That extends, for example, to matters of the extent to which they bartered and whether or not Mr Cullen started from a higher figure.

1. I accept Mr Kerr's evidence that the discussions were held in the context of bringing the matter to an end. I accept that at stages in the conversation, though probably not at the conclusion, reference was made to the court proceedings being on foot. I find that it was more probable than not that phrases like “putting the matter to bed” were used; that would seem to me to be more likely, given the individuals involved, than the use of legal phrases like "full and final settlement". I do not rule out the possibility such legal phrases might have been used, but I am more confident that phrases like "putting the matter to bed" were used.

1. I also accept that Mr Kerr believed that by handing over the cheque, he was purchasing the end of the matter, and that in return for his money the court case would be concluded and that he would not have to worry about the dispute again.

1. I am less sure that Mr Cullen appreciated that that was the effect that his acceptance of the cheque would have. I accept that he knew in his own mind that Mr Thiele would not be prepared to drop the case in return for a cheque for $1300, but I also accept that he did not do anything to convey that belief to Mr Kerr. While Mr Cullen might have known that Mr Thiele was not likely to drop the case or want to drop the case for $1300, I am satisfied that he did not say anything in those terms to Mr Kerr.

1. It may have been that Mr Cullen thought that Mr Thiele would be able to have his cake and eat it too; that is, that Mr Thiele would be able to accept the cheque for $1300 without giving up his right to pursue his application in this court. If he thought that, then he was mistaken, and it was a mistake of law, rather than of fact.

1. Mr Cullen's evidence of Mr Thiele's reaction is illuminating. He says Mr Thiele's initial reaction was that he wanted to rip up the cheque and “go back to square one”. Mr Thiele's reaction indicates that his instinctive appreciation of the consequences of accepting the cheque were more accurate than those of Mr Cullen. However, Mr Thiele was persuaded to follow Mr Cullen's advice, which was to bank the cheque first and to wait for the cheque to clear before doing anything to proceed with the action.

The Settlement Agreement

1. Mr Cullen’s advocacy of the strategy of waiting for the cheque to clear before proceeding with the action indicates that it was apparent to Mr Cullen that Mr Kerr would not have handed the cheque over if he thought the case was going to continue after the cheque had been paid, otherwise there would have been no need for Mr Thiele to wait for the cheque to clear. Mr Thiele went on to bank the cheque. That is understandable; he needed the money then, not later. However, I find that, as a matter of law, Mr Cullen acted as Mr Thiele's agent when he accepted the cheque and that at that point a settlement agreement came into being. Trustech is entitled to rely upon that agreement.

1. While I do not have to decide this, it may be that Mr Thiele could still have rescinded the agreement had he not gone on to bank the cheque. However, I am satisfied that any capacity for Mr Thiele to “second-guess” or to renege on any agreement his step-father entered into as his agent came to an end when the cheque was banked.

1. We are therefore left with an agreement which I am satisfied had the effect of settling the matters in dispute between the parties. Mr Kerr and Trustech are entitled to rely on that agreement as a full defence to Mr Thiele’s claim.

Conclusion

1. I will therefore dismiss the application.

   I certify that this and the preceding (7) pages
   are a true copy of the reasons for decision of
   Judicial Registrar R.D. Farrell.

   Associate:
   Dated:

   APPEARANCES

   The applicant appeared in person

   The respondent represented itself              

   Date of Hearing:  17 June 1996

   Date of Judgment:  17 June 1996