Mouketo v Queensland[2016] ICQ 25

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   The appellant (Ms Mouketo) was employed by the respondent at Logan Hospital until her employment was terminated by a letter of 7 January 2016. She applied for reinstatement and a conciliation conference – as required by s 75 of the Industrial Relations Act 1999 (“IR Act”) – was held on 29 January 2016.
2. [2]
   One of the areas in debate in this appeal is whether an agreement to settle the reinstatement application was reached on that date.
3. [3]
   After the conference the respondent sent a deed of settlement to Ms Mouketo for execution. Ms Mouketo refused to sign the deed and asserted that she had not agreed to the compromise and that she wanted the application to proceed.
4. [4]
   Deputy President Kaufman convened another conciliation conference on 17 March. On 15 April he gave his decision on matters which had arisen in that conference. In his reasons he said:

“[1] 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.

[2] 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.

[3] 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.”

5. [5]
   The Deputy President referred to Zoiti-Licastro v Australian Taxation Office^[1] and held that the agreement reached in the January conference fell squarely into that category of agreement 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 proposed to have the terms restated in a form which will be fuller or more precise but not different in effect. His Honour concluded by deciding to refrain from further dealing with the matter pursuant to s 331(b)(ii) of the IR Act and he declined to issue a certificate under s 75.

Application to appeal

6. [6]
   The grounds of appeal are:

“I have not been given an opportunity to make submission/or be heard before the court, before commissioner made his decision. Commissioner has misinterpreted the obligation of the Commission under section 75(3) of the Act. Misconstruction of the meaning of reasonable attempts to settle the matter. Commissioner declines to issue a certificate under section 75(3).”

7. [7]
   These grounds were not pursued with any vigour in either the written or oral submissions of the appellant. Rather, the appellant’s case revolved around a complaint that she had not been given any grounds for her dismissal and, more importantly, that she had not agreed to any settlement. The written submissions for the appellant were not directed to the appellate process but were consistent with an application for reinstatement.
8. [8]
   The grounds of appeal available for an appellant are limited, by s 341 of the IR Act, to errors of law or an excess or want of jurisdiction. The error of law which was advanced in the oral submissions was that the Deputy President had erred in concluding that there had been a settlement reached.

Was there an agreement?

9. [9]
   It is clear from his reasons that the Deputy President was of the view that there had been an agreement concluded between the parties. In an ordinary hearing in the Commission, there would be a transcript of the evidence which would allow an assessment to be made, at this stage, of whether there was evidence to support such a conclusion. As this arose from a conference, there was no transcript, and so I allowed the parties to present evidence as to what occurred in the January conference. Affidavits were filed by the appellant and by two representatives of the respondent.
10. [10]
    In her affidavit, Ms Mouketo set out her recollection of the exchanges which took place leading up to the conclusion of the conference. She recalls making a number of comments to the effect of: “I want to know why I was dismissed”. She then sets out a series of statements and refers to movements in and out of the room during negotiations. Finally, she records this as having been said and done:

“36 Deputy President Kaufman asked Mr Khoury ‘How much do you want to pay her? $5,000?’

37 Mr Khoury said ‘$5,000’ and I have to call payroll and the Nurse Unit Manager for further discussion.

38 I said ‘I won’t take that amount of money after I have been unfairly dismissed from my job without a valid reason’.

39 Deputy President Kaufman said to me ‘Can you leave the room’.

40 When I was back in the room Mr Khoury said ‘I have made some contact, you will get an amount around $2,000 to $3,000 based on your employment agreement’.

41 I refused and said ‘I get paid much more when I work more shifts and showed my payslips to Deputy President Kaufman’.

42 Mr Khoury responded ‘If we pay you more you will pay more tax’.

43 Deputy President Kaufman asked me to leave the room.

44 I was called back in the room and proposed by Deputy President Kaufman and Mr Khoury to take an amount of $5,089.44 to settle the matter.

45 I looked at both of them and did not say a word.

46 Deputy President Kaufman said ‘A deed of settlement will be made’ and that I must seek legal advice and take some time before making a decision with regard to the deed.

47 I said ‘What is a deed of settlement?’

48 Deputy President Kaufman responded ‘They are going to make a deed’ and pointed to Mr Khoury who was nodding his head.

49 I said ‘Is the deed going to include the reason why I was dismissed? Is that the legal process of dealing with an unfair dismissal Commissioner?’ and ‘I don’t have knowledge of this, it is my first time to deal with such issue’.

50 Deputy President Kaufman responded ‘As I told you before, you must seek legal advice before signing the deed. If you sign the deed, you have then agreed to settle the matter’.

51 It was not explained to me by anyone at the conference what the deed of settlement was or what it would say.”

11. [11]
    Two affidavits were relied upon by the respondent. The first was from Georges Khoury who was present at the conciliation conference in January. He referred to the manner in which the Deputy President conducted the conference and said that the following occurred:

“10. After the parties had the opportunity to provide their respective submissions during joint conference, the Deputy President asked me if the Respondent had any offers to make to the Applicant to resolve the matter and prevent it from progressing to arbitration.

11. The Applicant then said words to the effect of:

‘$8,000 will allow me to move on from the matter and be able to pay for my children’s school fees.’

12. I then said words to the effect of:

‘The Health Service has given me instruction to offer 4 weeks’ pay to Ms Mouketo to settle.’

13. The Deputy President then turned to me and said words to the effect of:

‘Could the Health Service provide an exact monetary amount of its offer of 4 weeks’ pay?’

14. In response to the Deputy President’s request, I advised that I would need to contact Queensland Health’s payroll department to determine the exact monetary amount equal to 4 weeks’ of the Applicant’s pay.

15. Ms Mill and I then left the conference room. Immediately, I called Dr Ashby, Chief Executive of the Respondent, and sought his instructions with respect to the monetary amount I was authorised to offer to the Applicant to settle the matter. In addition, I also spoke to Professor David Crompton, Executive Director, Addiction and Mental Health Services, as the responsible executive for the area which the Applicant worked to ensure he was satisfied with Dr Ashby’s instruction. During this phone call, I overheard Ms Mill on her telephone speaking with who I believe to be a Queensland Health payroll officer.

16. Ms Mill then advised me that she had spoken to the Payroll department and they advised her that the monetary amount equivalent to 4 weeks’ of the Applicant’s pay was $4,800 gross.

17. Ms Mill and I then re-entered the conference room. After sitting down at the conference table, I said words to the effect of:

‘The Health Service can offer Ms Mouketo $4,800 to the Applicant to settle.’

18. The Applicant then responded to me by stating words to the effect of:

‘That figure is incorrectly calculated, you did not take into account the additional nights I was rostered to work. Can the Health Service make the payment $6,000 instead?’

19. In response to the Applicant, I said words to the effect of:

‘I will have to seek further instructions from the health Service for any amounts higher than $4,800 to settle.’

20. The Deputy President then turned to the Applicant and said words to the effect of:

‘The Health Service work in weeks to more easily effect any settlement sum payment.’

21. Ms Mill and I then left the conference room again to seek instructions from the Respondent about increasing its offer to the Applicant in order to settle the matter. Immediately, I called Dr Ashby again and he provided me with approval to offer the Applicant 6 weeks’ pay as part of a settlement. I also spoke to Professor Crompton and sought his instructions. During this phone call, I overheard Ms Mill seeking clarification from who I believe to be a Payroll officer.

22. Ms Mill then advised me that she had spoken to the Payroll department and they advised her that the monetary amount equal to 6 weeks’ of the Applicant’s pay was $5,089.44 gross.

23. Ms Mill and I then re-entered the conference room. After I sat down at the conference table, I said words to the effect of:

‘The Health Service can offer Ms Mouketo 6 weeks’ pay to settle, which is $5,089.44 gross.’

24. The Applicant advised the Deputy President, Ms Mill and I that she needed to consider the Respondent’s offer in private. The Applicant and her husband then left the conference room.

25. Shortly after, the Applicant and her husband re-entered the conference room and the Applicant said words to the effect of:

‘I will accept Health Service’s offer of $5,089.44.’

26. The Deputy President then said words to the effect of:

‘Now that there is an agreement between the parties to settle the matter, the way that settlements are generally documented in matters of this nature is in a deed of settlement. Generally, a deed of settlement contains terms of the parties’ agreement including non-disparagement where the parties cannot disparage each other, a confidentiality term where the parties are required to keep these matters and the settlement confidential and a mutual release meaning that the parties cannot bring legal action against each other going forward.’

27. The Deputy President then said words to the effect of:

‘This resolves the matter. The parties get to walk away and not go to arbitration.’”

12. [12]
    Eleanor Mill was also present at the conference and she also provided an affidavit. She expressed her recollection of the relevant part of the conference in the following way:

“12. After Mr Khoury had concluded his submissions, Deputy President Kaufman said words to the effect of:

‘Can the Applicant’s claim be resolved by way of a settlement? What will you require to settle the matter?’

13. In response to Deputy President Kaufman, Ms Mouketo said words to the effect of:

‘I require $8, 000 to settle. My kids are in school and I need to pay schooling fees.’

14. Mr Khoury then said words to the effect of:

‘I am going to need to contact the delegate and get approval in relation to settling the matter.’

15. Deputy President Kaufman then stood up and opened the door to the conference room and directed Ms Mouketo and Mr Mouketo to leave the room. Deputy President Kaufman then left the room through another door.

16. Mr Khoury then called Dr Ashby, who is the Chief Executive of the Respondent, and Professor David Crompton, who is the Executive Director for Metro South Addiction and Mental Health.

17. I spoke to a representative of Queensland Health Payroll Services in relation to Ms Mouketo’s weekly wage rate. Specifically, I asked the representative if she could tell me the monetary amount equivalent to four weeks’ wages for Ms Mouketo. The representative advised me that this equated to $4,800 gross and I advised Mr Khoury of such.

18. Mr Khoury and I took spent [sic] approximately fifteen minutes on the phone at this stage of the conference. Once these phone calls were finished, Deputy President Kaufman, Ms Mouketo and Mr Mouketo returned to the conference room and sat down at the table.

19. Mr Khoury then looked at Ms Mouketo and said words to the effect of:

‘The Health Service can offer Ms Mouketo $4,800 gross to settle the matter.’

20. Ms Mouketo responded to Mr Khoury by saying words to the effect of:

‘I do not think that figure is accurate. I do not think that the penalties on night shifts have been taken into account in calculating four weeks’ pay. It should be more money and I do not understand why the offer is made in weeks.’

21. Deputy President Kaufman then said words to the effect of:

‘It is easier for the Health Service to work in weeks for the purpose of settlement payments.’

22. Mr Khoury then said words to the effect of:

‘I will have to make some enquiries about your concern with Payroll.’

23. Deputy President Kaufman then asked Ms Mouketo and Mr Mouketo to leave the conference room and they did. Deputy President Kaufman then left the room via a separate door.

24. Mr Khoury then called Dr Ashby again. Mr Khoury then asked me to contact Payroll Services to find out the monetary amount equivalent to six weeks’ wages for Ms Mouketo.

25. I then called Queensland Health Payroll Services. In that phone call I asked the representative if she could tell me the monetary amount equivalent to six weeks’ wages for Ms Mouketo. The representative advised me that six weeks’ pay for Ms Mouketo was equivalent to $5,089.44 gross.

26. Mr Khoury and I spent approximately fifteen to twenty minutes on the phone at this stage of the conference. Once these phone calls were finished, Deputy President Kaufman, Ms Mouketo and Mr Mouketo all returned to the conference room and sat down at the table.

27. Mr Khoury then said words to the effect of:

‘We can offer the Applicant six weeks’ pay to settle the matter which equals $5,089.44 gross. This is the final offer that will be made.’

28. Deputy President Kaufman then said to Ms Mouketo words to the effect of:

‘Do you want some time to think about the offer?’

29. Ms Mouketo responded by saying words to the effect of ‘Yes I do’.

30. Following this, Deputy President Kaufman, Ms Mouketo and Mr Mouketo then left the conference room.

31. Approximately five minutes later, Deputy President Kaufman, Ms Mouketo and Mr Mouketo re-entered the conference room and sat at the table.

32. Ms Mouketo then said words to the effect of:

‘I accept the offer.’

33. Deputy President Kaufman then said words to the effect of:

‘So, now that the matters has [sic] been settled here today, the Health Service will need to draft a deed for signing by the parties.’

34. Deputy President Kaufman then looked at Ms Mouketo and said words to the effect of:

‘After you sign the deed is when you will receive the settlement funds.’”

13. [13]
    Consistent with the recollection of Mr Khoury and Ms Mill the respondent prepared a deed of settlement and provided it to the appellant. Ms Mouketo declined to execute that deed.
14. [14]
    In the hearing before me each of the deponents was cross-examined on their affidavits. In her evidence Ms Mouketo said that that she “never accepted the money”. She said that after the offer of $5,089.44 was made she didn’t say a word and, without her saying anything, Deputy President Kaufman then said that a deed would be made. In answer to a question from Mr Moy, Ms Mouketo expressed what appears to be her major complaint with the process. She expressed her dissatisfaction with the events leading up to her termination not being the subject of discussion. As she put it: “and it’s like we have not to discuss about what happened before but we have to discuss about the money. That’s what all Queensland Health want to discuss about – about the money. Well, why don’t we discuss about what happened? Why do we get to the money? That the same point I’m coming back again with.”
15. [15]
    Mr Khoury and Ms Mill were cross-examined. Almost all the cross examination was devoted to issues relating to the reasons for her termination rather than what occurred at the conference. During the cross examination of Ms Mill, Ms Mouketo said that she didn’t “trust their deed of settlement – their affidavit, because they were not telling the truth on the first day I met with them, in front of Deputy Kaufman [sic]. So why should I believe in what they put in the deed – in the affidavit?”
16. [16]
    I prefer the evidence of Mr Khoury and Ms Mill to that of the appellant. I do not accept that Ms Mouketo said nothing when she was asked whether she would accept $5,089.44 to settle the matter. On her own evidence she had been involved in the negotiations and the alleged failure to respond to the settlement offer would not have led the Deputy President to form the view that a settlement had been reached. It is more likely that the appellant did accept the sum proposed and that the matter be settled and that she has had a change of heart since then. Her concentration on the reasons for her termination may have led her to rejecting the deed but the settlement had been effected in the January conference.
17. [17]
    I do not accept that the appellant was not given an opportunity to be heard. I prefer the evidence led for the respondent on that point. It is also inconsistent with the manner in which, even on the appellant’s account of the conference, the conference had been conducted up to that point.

What type of agreement was it?

18. [18]
    The circumstances of this agreement are quite common. It is an ordinary consequence of an agreement being reached at a conference of this type that the terms be recorded in writing. The relevant principles appear in Masters v Cameron:^[2]

“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.”

19. [19]
    The exchanges between the parties and the Deputy President, as recalled by Mr Khoury and Ms Mill, place this case within the second category. In other words, the parties had agreed that the matter was settled but, in order that the payment be made, the parties had to execute the deed of settlement.
20. [20]
    It was implicit in some of her submissions and explicit in some others that Ms Mouketo contended that she did not understand the process. I do not accept that. Ms Mouketo appeared before me twice. It was obvious that she is an intelligent person, and her capacity to work as a nurse supports that.

Conclusion

21. [21]
    The appellant has not demonstrated that the Deputy President erred in declining to issue a certificate under s 75. He would have been wrong to do so given that the matter had settled.
22. [22]
    The respondent sought that a series of orders be made in the light of Ms Mouketo’s reluctance to sign the deed:

1. (a)
   that the requirement for execution of the deed be waived, and
2. (b)
   that the matter be settled in accordance with the brief summary set out in [1] of his reasons.

23. [23]
    I think that a better way to deal with the matter is to make the following orders:

1. (a)
   Appeal dismissed.

2. (b)
   If the appellant does not, within five days of this order, execute the deed and return it to the solicitors for the respondent, the Deputy Industrial Registrar is authorised to execute it on behalf of the appellant and do all other things necessary to perfect the agreement.
3. (c)
   Upon execution of the deed in accordance with the order above, the respondent is to pay to the appellant the sum of $5,089.44.