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State of Queensland (Department of Health – Darling Downs Hospital and Health Service) v Deo[2019] QIRC 84

State of Queensland (Department of Health – Darling Downs Hospital and Health Service) v Deo[2019] QIRC 84

 

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

 

CITATION:

State of Queensland (Department of Health – Darling Downs Hospital and Health Service) v Deo [2019] QIRC 084

PARTIES:

State of Queensland (Department of Health – Darling Downs Hospital and Health Service)

(Applicant)

v

Deo, Bhram

(Respondent)

CASE NO:

TD/2018/16

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

4 June 2019

HEARING DATES:

22 February 2019

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDER:

Application to dismiss granted

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - APPLICATION IN EXISTING PROCEEDINGS - APPLICATION TO DISMISS -  whether final agreement reached at conciliation conference - deed of settlement not executed – whether application for reinstatement resolved at conference.

LEGISLATION:

Industrial Relations Act 2016, s 315, s 317

CASES:

Masters v Cameron (1954) 91 CLR 353

Rossiter v Miller (1878) 3 App Cas 1124

APPEARANCES:

Mr S A Mackie, Counsel, instructed by Crown Law, for the applicant;

Mr J Farren, Counsel, instructed by Holding Redlich Lawyers, for the respondent.

Decision

Introduction

  1. [1]
    On 20 February 2018, Mr Brahm Deo (the respondent in these proceedings) applied pursuant to s 317 of the Industrial Relations Act 2016 (the IR Act) for reinstatement in employment with the Darling Downs Hospital and Health Service (the health service).
  1. [2]
    Mr Deo had been employed by the health service in the capacity of an Environmental Health Officer since 27 June 2013. His employment was terminated by the health service on 30 January 2018.
  1. [3]
    The application for reinstatement was subject to a conciliation conference before Vice President Linnane on 14 March 2018. While there is a dispute over whether a final agreement had been reached on the day in resolution of the application for reinstatement, some form of in principle agreement was arrived at, and a deed of release subsequently exchanged. A section 318 certificate was not prepared by the Vice President. Without a certificate, Mr Deo could not seek to have his application for reinstatement proceed to arbitration.
  1. [4]
    The principal items in the settlement discussed on the day involved an ex gratia payment and a resignation in lieu of a dismissal at the initiative of the employer. The terms of the agreement were to be subject to the terms of "a standard deed". The arrangement between the parties was that the deed was to be prepared by the respondent. Ultimately the deed was never executed.
  1. [5]
    Soon after the conference, and on 27 March 2018, Mr Deo emailed Ms Gleeson and brought to her attention his concern that his final termination pay may not have been correctly calculated. Email exchanges around these issues took place between 27 March 2018 and 5 July 2018. After Mr Deo provided further information in relation to his prior service with the Albury City Council, he received a further payment from the health service in the order of $9,000.
  1. [6]
    While email exchanges took place over the March 2018 to June 2018 period, the deed of release was not signed nor was any action taken by Mr Deo in respect to the application for reinstatement.
  1. [7]
    On 21 September 2018, the health service wrote to Vice President Linnane, outlined the history to the matter, and requested that the file be closed. In the correspondence, the health service pointed out that Mr Deo had approached the health service "on several occasions seeking further payment of monies he felt were entitlements to his final separation pay, including dispute regarding leave loading and additional remuneration for early retirement, redundancy or retrenchment". Vice President Linnane had by this date retired from service with the Commission and she was not therefore in a position to respond to the health services communication.
  1. [8]
    In an endeavor to effect a resolution of the issue, the matter was mentioned on 12 October 2018 before the Commission as currently constituted. In the mention the Commission noted that no certificate had been issued pursuant to s 318 of the IR Act. In these circumstances, no conclusion had been reached to the effect that all reasonable attempts to settle the application for reinstatement had been made, which is a prerequisite under s 319 of the IR Act to the application proceeding to arbitration.
  1. [9]
    Consequently, the application was referred to another member of the Commission for conciliation and, if conciliation was unsuccessful, for the purpose of issuing a s 318 certificate.
  1. [10]
    Around the same time the applicant had elected to institute proceedings in the Anti-Discrimination Commission Queensland.
  1. [11]
    The conciliation conference was held on 6 November 2018. The conference was not successful in settling the matter and a s 318 certificate was issued on the same date confirming the outcome. On 8 November 2018, Mr Deo requested that his application for reinstatement progress to hearing.
  1. [12]
    A directions order was issued on 9 November 2018 which included the scheduling of a mention of the application for reinstatement on 22 February 2019 and for the hearing of the application on 13 and 14 March 2019.
  1. [13]
    On 25 January 2019, the health service made an application seeking that Mr Deo's application for reinstatement be struck out or dismissed in its entirety.
  1. [14]
    Following the application to dismiss, an application was made and acceded to that the directions relevant to the scheduled hearing of the substantive matter be vacated pending the determination of the application to dismiss.
  1. [15]
    The application to dismiss was heard on 22 February 2019 and decision was reserved. Subsequently, on 8 April 2019, the parties were advised that a report made by Vice President Linnane in relation to the conciliation conference held on 14 March 2018 had been discovered on the file.
  1. [16]
    In the report, the Vice President noted that the conciliation was successful, identified that the matter was resolved by agreement, and stated that the agreement was in full and final settlement of all and any claims arising out of the employment/dismissal.
  1. [17]
    As a result of the disclosure of the report, it was agreed that the parties would provide a supplementary submission in relation to matters arising from the report. The exchange of submissions concluded on 8 May 2018.
  1. [18]
    This decision deals with, and decides, the health service's application to dismiss Mr Deo's application for reinstatement.

Application to dismiss

  1. [19]
    On 25 January 2019, the health service made an application pursuant to s 451(2) and section 541(b)(ii) of the IR Act seeking that Mr Deo's application for reinstatement be struck out or dismissed in its entirety. In the application, the following orders were sought:
  • A section 451(2) order dismissing the application on the basis of the currency of the application and a consequential lack of jurisdiction or a general lack of jurisdiction to hear and determine the substantive application;
  • In the alternative, a section 541(b)(ii) order dismissing the application on the basis that further proceedings are not necessary or desirable in the public interest;
  • An order that the deed of settlement prepared on 29 March 2018 be executed by Mr Deo within five days of the decision of the Commission, and the executed deed returned to the applicant;
  • An order that the applicant upon receipt of the executed deed will pay Mr Deo the settlement sum within two days of receipt of the executed deed; and
  • An order that the respondent pay the applicant's costs incidental to the application to dismiss.

Evidence

  1. [20]
    Affidavits were sworn by Catriona McPherson (Crown Law) on behalf of the applicant and by Bhram Deo. Evidence in the proceedings was given by Maree Gleeson (Senior HR Advisor with the Health Service), Chris Neilsen (Director of Workforce for the Health Service), and Bhram Deo.

Matters in contention 

  1. [21]
    The key issue in contention is whether a final agreement in resolution of Mr Deo's application for reinstatement was reached during a conciliation conference presided over by Vice President Linnane on 14 March 2018.

Representation

  1. [22]
    Ms Lindsay from the Together Union represented Mr Deo at the conciliation conference on 14 March 2018. Mr Deo acknowledged in his evidence that he had appointed Ms Lindsay as his agent or representative. He suggested that this authority was operative at the start, but that at some later stage in the process, he had been given some wrong information and this caused him to doubt whether he could rely on her advice. Beyond this point in time, it appeared that Mr Deo looked after his own interests.
  1. [23]
    Mr Deo did not state in his evidence when he decided that he did not wish to retain Ms Lindsay as his representative. Email exchanges on 27 March 2018 and 29 March 2018 between Ms Lindsay and Ms Gleeson indicated that Ms Lindsay was representing Mr Deo at that stage of the process and had reached agreement on the terms of the release clause included in the deed of settlement.
  1. [24]
    However, in an email to the registry on 9 April 2018, despite saying that the deed of settlement had been "examined very carefully by my Union and me", Mr Deo proceeded to articulate a complaint about the release clause in the deed.
  1. [25]
    What is known is that on 29 June 2018, Ms Lindsay advised the parties and the Commission that Together Queensland was withdrawing its representation on behalf of Mr Deo.

Conciliation conference

  1. [26]
    Mr Deo said that he was in a state of shock after his termination, and that he was still in a broken and traumatised state six weeks later when he attended the conciliation conference. No medical evidence was provided addressing his condition at the time. Mr Deo said that he relied on Ms Lindsay for advice and that she told him that he did not need to speak at the conference unless he was asked a question.
  1. [27]
    It was Ms Gleeson's evidence that, after opening statements were completed, the Vice President spoke to both parties separately. Ms Gleeson said that after speaking to Ms Lindsay and Mr Deo, the Vice President told Ms Gleeson and Mr Neilsen that "settlement may be possible" with an ex-gratia payment of $15,000. Either in the same conversation or subsequently, the Vice President also asked that Mr Deo be allowed to resign in lieu of termination. These terms were agreed to by the respondent and the Vice President was informed accordingly. The Vice President then engaged in private discussions with Ms Lindsay and Mr Deo. Some time later the Vice President returned with a handwritten letter of resignation signed by Mr Deo.
  1. [28]
    Mr Deo's version of these stages of the conciliation process was a little different. He agreed that after the opening statements, the Vice President separated the parties. But on his version, the Vice President initially informed him and Ms Lindsay that the Health Service was prepared to offer $10,000, an opportunity to resign and a statement of service. The effect of Mr Deo's evidence was that he did not ask that he be allowed to resign but that it resulted from a proposal put by the Vice President to the health service.
  1. [29]
    Mr Neilsen recalled that as part of the conciliation process, the Vice President separated the parties and that at some stage the Vice President informed him that Mr Deo would be prepared to accept a settlement offer of $15,000. Outside of this, it was agreed that Mr Deo would be provided with a statement of service and that a resignation would replace the letter of termination. Subsequently all the parties reconvened and Vice President Linnane summarised the terms of settlement.
  1. [30]
    In his affidavit, Mr Deo said that he told Ms Lindsay and the Vice President that he would not accept the offer of $10,000. When the offer was increased to $15,000, he said that both Ms Lindsay and the Vice President advised him to accept the offer of $15,000. He said that he did not recall saying that he accepted the offer, but that Ms Lindsay said that she accepted the offer in principle because there were further issues to be discussed.
  1. [31]
    Mr Deo wrote and signed a letter of resignation in the conference (attachment CM1 to the affidavit of Ms McPherson). Mr Deo said that he wrote and signed the letter of resignation while all parties and the Vice President were in the conference room.  He said that the Vice President suggested that he should write his letter of resignation there and then. He said that he gave the letter to Ms Lindsay after he had signed. Shortly thereafter he said that he handed the letter to the Vice President who told him to leave the date blank and said that she will think later about what date to include in the letter.
  1. [32]
    Ms Gleeson said that she agreed to allow a resignation provided that the date of the resignation mirrored the actual date of termination. Ms Gleeson said that some time later, the Vice President returned again and that "she had in her hand a handwritten letter of resignation". When the letter was received, Mr Neilsen made a handwritten entry on the letter which read "Given 14 March 2016 at Conciliation".
  1. [33]
    It seems reasonably clear to me that the evidence supports a finding that the resignation was discussed as part of the terms of settlement and that the Vice President facilitated a settlement in respect to this term. When she secured the health service's agreement, she asked Mr Deo to write and sign the resignation, following which she proceeded to present the letter to Ms Gleeson and Mr Neilsen. It follows that in the process Mr Deo was giving effect to a term of the settlement.
  1. [34]
    I accept that the letter was handed to the Vice President while in private conference with Mr Deo and Ms Lindsay. If the Vice President had intimated that she would identify the date to be included in the resignation, it was likely that she said so because she knew from what Ms Gleeson had told her that the resignation had to have effect from the same date as the date of termination.
  1. [35]
    It was common ground that after separately discussing issues with the parties, the Vice President resumed the conference with all parties present. The effect of Mr Deo's evidence was that during the discussion the Vice President had asked whether all termination payments had been made. Mr Deo said that while Mr Neilsen and Ms Gleeson said that all payments had been made, he advised the Vice President that some termination payments had been made, and that he was not sure whether he was owed more money.
  1. [36]
    In his affidavit, Mr Deo also said that during that Mr Neilsen had made an enquiry about the issue of bullying and harassment raised in the application for reinstatement and asked that this issue be included in the proposed settlement. While Mr Deo accepted in his evidence that his application for reinstatement included no mention of bullying or harassment, he said that he had raised such matters with Ms Lindsay on the day of the conference, and that she had said that they would be dealt with separately.
  1. [37]
    Both Ms Gleeson and Mr Nielsen rejected Mr Deo's version of events. Both denied that there was any discussion around termination payments or about bullying and harassment. It was Ms Gleeson's evidence that she was not aware that Mr Deo believed that he had been underpaid at the time of the conference and that she only became aware of the issue when she received an email from Mr Deo some time after the conference.
  1. [38]
    Mr Neilsen's evidence was that he did not know anything about claims of bullying and harassment until a preliminary hearing in the Commission on 12 October 2018. He said the issues had not been raised prior to this time. Mr Neilsen also said that he was not aware at the time of the conference that Mr Deo had an issue with his termination payment.
  1. [39]
    On Ms Gleeson's evidence, when both parties had been brought back together, the Vice President expressed satisfaction that the parties had reached a resolution and Ms Lindsay asked who would be responsible for the preparation of a deed of release. In response, Ms Gleeson advised that the health service would prepare the deed. On Ms Gleeson's recollection, the conference closed in the following circumstances (T1-13):

Okay. Were there any other closing comments by either VP Linnane or the parties?---VP Linnane again restated she was satisfied and happy that resolution had been reached. She made general comment or broad comment around the fact that the deed would be binding and that if any party breached any of the conditions, that there would be consequences. None of that was elaborated on. And that she called the conference to a close.

  1. [40]
    Mr Neilsen gave similar evidence. He said that after all parties had assembled in the conference room, Vice President Linnane "summarised that a settlement had been reached and, basically, summarised the terms of settlement. And I made some notes to that effect." Mr Neilsen's evidence about the notes is set out below (T1-25):

And the next points are, basically, what I noted when VP Linnane was summarising the terms of the settlement. And that was resignation, confidentiality, no disparagement, 15k, and myself as a reference or my successors.

  1. [41]
    Mr Deo said that he could not recall whether the Vice President said, when the parties were brought back together, words to the effect that she was glad that matter was able to be settled.  He denied that the Vice President summarised the terms of settlement to be included in a deed. He did not recall Ms Lindsay asking who would prepare the deed nor did he recall Ms Gleeson saying that she would prepare the deed. He did recall however the Vice President saying that the health service would prepare a deed.

Deed of Release

  1. [42]
    Mr Deo said in his affidavit that there was no discussion between the parties about what would be in the deed. Ms Gleeson agreed that other than a general reference to the preparation of a standard deed, there was no discussion about the specific contents of the deed.
  1. [43]
    The effect of Ms Gleeson's evidence was that there was no discussion about the particular form of the release clause and the extent to which it may restrict the applicant in terms of other claims. It was her expectation that Mr Deo's representative would have explained the meaning and effect of a standard deed to Mr Deo, including the effect of a release clause.
  1. [44]
    It was Mr Neilsen's evidence that he did not recall any discussion about the release clause or the no extra claims clause to be included in the deed. He also did not recall either Mr Deo or Ms Lindsay making any statements in the conference about a release clause.
  1. [45]
    In his affidavit Mr Deo said that the Vice President stated that the health service would prepare the deed but that "she would go through it to ensure it was fair and justified and then send it back to the parties for acceptance". He said that according to what was discussed, a copy of the draft deed should have gone to the Vice President. In my view, if such a statement were made by the Vice President, it was more likely that it was made for the purpose of including a copy of the deed on file, not for the purpose of the Vice President reviewing the terms and forming an opinion on whether the terms were fair and reasonable. It would be unlikely, in circumstances where Mr Deo was represented by an industrial officer from the Together Union, that the Vice President would have required that the deed be subject to review by herself.
  1. [46]
    In his affidavit, Mr Deo also asserted that the Vice President also said that if he "withdrew from the conciliation outcome and funds amounting to $15,000 were paid by DDHHS" the funds would have to be reimbursed to the health service and that this "would result in the outcome of the conciliation being 'back to square one'".  In cross-examination, Mr Deo did not accept that what the Vice President may have been referring to, if she did as a matter of fact address the issue, was the likely inclusion in any proposed deed of a clause similar to clause 7 in the deed subsequently prepared. The applicant's submission was that if the Vice President articulated these words she was not offering Mr Deo a way out of the deed, she was rather saying that if he breached the deed, he would have to pay the $15,000 back.
  1. [47]
    I prefer the respondent's version of events relating to this matter. While the Vice President may have warned the parties against breaching the terms of the deed, it is unlikely that she would have suggested to Mr Deo that he would not be bound by the deed. Such a proposition is inconsistent with the record of conference prepared by the Vice President.
  1. [48]
    In his affidavit, Mr Deo said that "at some point following the conciliation conference", Ms Lindsay sent the first draft of the deed of settlement to him. He said that he felt that the deed was "contrary to what was discussed at the conciliation conference" and that he told Ms Lindsay that he would not accept the deed, especially the condition that he would forfeit all other claims.  He said that he was not aware that Ms Lindsay had requested amendments to the deed on his behalf. While there remains an issue of timing, Mr Deo's evidence is not consistent with the facts to the extent that Ms Lindsay never communicated to Ms Gleeson any dissatisfaction with the terms of the deed other than in relation to two changes which she brought to Ms Gleeson's attention on 27 March 2018. Consequently, in so far as Ms Gleeson and Ms Lindsay were concerned, there were no unresolved issues beyond 29 March 2018 when Ms Gleeson agreed with the two changes put forward by Ms Lindsay. 
  1. [49]
    On the email trail, Ms Gleeson had provided Ms Lindsay with a copy of the deed on 22 March 2018. Ms Lindsay responded on 27 March 2018 and said that she had provided a copy of the deed to Mr Deo. It followed that somewhere between 22 March 2018 and 27 March 2018, Mr Deo would have seen a copy of the deed. There is no corroborating evidence to the effect that Mr Deo complained about the terms of the deed to anyone between when he first saw the deed and when he sent his email to the registry on 9 April 2018.

Post conference communications

  1. [50]
    Following the conference, the terms of the deed was the subject of some discussion between Ms Gleeson and Ms Lindsay. In these discussions, Ms Lindsay had proposed some changes to the deed in an email sent to Ms Gleeson on Tuesday 27 March 2018:

Subject: Re: Deo, B – Deed of Settlement

Good Afternoon Maree,

Thank you for your email to me on Thursday with the amended deed for Bhram Deo and for your time to speak to me earlier.

I have provided a copy of this to Bhram and I have reviewed the revised deed. I just wanted to raise a couple of points with a request to amend the document. Specifically:

  • In Section 1.1 after ("Settlement Sum"), to include "in addition to other monies previously paid to the Employee by the Employer"
  • I note that Section 3. "Release by Employee" does not include a release clause by the Employer. I suggest we ask for this clause to be amended so it is "mutual release"?

Can you please let me know if Darling Downs Health and Hospital Service can amend the document can be amended (sic) to address these points Maree?

  1. [51]
    Ms Gleeson replied to Ms Lindsay on 29 March 2018 saying that the delegate had agreed to the requested amendments. A revised Deed of Settlement was attached.
  1. [52]
    In an email to Ms Gleeson dated 27 March 2017, Mr Deo raised concerns about his final entitlements and questioned whether his previous service with Albury City and the Department of Health had been recognised. Mr Deo attached a copy of the "Recognition of Previous Service – Policy Number C55 (QH-POL-22)" and claimed in effect that his policy had not been complied with. He asked Ms Gleeson to "reconsider my benefits and payout accordingly".
  1. [53]
    Ms Gleeson informed Mr Deo that there was insufficient information to support consideration of his service with Albury City but that adjustments had been made in 2008 to recognise his service with the Department of Health.
  1. [54]
    On 9 April 2018, Mr Deo sent the following email to the QIRC Registry:

Subject: Deed – Bhram Deo Vs Queensland Health

This email refers to an attached Deed prepared by Queensland Health for execution after a Reconciliation Conference held on 14 March 2018 in relation the matter reference TD/2018/16.

The Deed has been examined very carefully by my Union and me.

It appears that the Deed as drafted is unjustified in terms of fairness especially in relation to clauses three (3) that requires to be completely removed.

I would kindly look forward for your assistant (sic) in terms of redrafting of the Deed for fairness for both the parties concerned.

Thank you

Bhram

  1. [55]
    Despite his email to the Industrial Registry, in none of his direct communications with Ms Gleeson did Mr Deo ask that the release clause be removed or amended. Rather he proceeded on the basis that he would defer signing the deed until such time as his unresolved claims in relation to his final payment had been resolved.
  1. [56]
    After further email exchanges between Mr Deo and Ms Gleeson on 29 March 2018, 3 April 2018, and 17 April 2018, Ms Gleeson emailed Mr Deo on 18 April 2018 and informed him that his claim relating to the recognition of prior service had been referred to Payroll Services for attention. She also asked Mr Deo to provide her with the signed deed of settlement "so that transaction may be finalized".
  1. [57]
    Subsequently, Mr Deo emailed Ms Gleeson on 24 April 2018 in the following terms:

Subject: Re: FW: RE: RE: Recognition of Previous Service – Policy Number C55 (QH-POL-22)

Hello Marree and Chris

Thank you for your email dated 18/4/2018 in relation to Final Pay Entitlement.

Kindly update me on progress of this matter so that the Deed may be executed.

In addition I hereby request the following documents be emailed and hard copies be posted at my home address please:

  • Complete details of my entitlements in relation to the termination of employment
  • Records with details (Tax deducted) for all payments made up to date including the future final payment. You will note that the Tax deductions were not identified on documents furnished earlier.
  • Records of all Salary Slips for the month of January 2018
  • PAYG payment Summary for the next Tax Return (2017/2018)

Thank you

Bhram

  1. [58]
    Mr Deo next emailed Ms Gleeson on 15 June 2018 and said that he would be pleased to sign the deed when outstanding payments were made:

Dear Ms Gleeson and Mr Neilsen,

I refer to my email dated 28/4/2018 in relation to the above matter.

I am pleased to learn that QH has recognised my previous service with Albury City Council (28.1.2002 to 22.9.2006) and subsequently made a payment of $9023.29 on 2/5/18.

However, I note with concern that other entitlements in accordance to Employment Termination Payments Standard QH-IMP-267-1-16:2005; Directive 16/16 Minister for Employment and Industrial Relations Directive: Early Retirement, Redundancy and Retrenchment; and Human Resource Policy – Recognition of Previous Service for Long Service and Sick Leave Purposes are still outstanding.

Apart from the above my Leave Loading equating to 135 hours as per Pay Advice dated 10.1.10 (DDHHS) is still outstanding.

I would kindly request that all outstanding payments outlined as per the above document be made within the next thirty (30) days.

Once the outstanding payments are made in full, I would be pleased to sign the “DEED” and forward a copy to QH immediately.

Thank you

Bhram Deo

  1. [59]
    The email referred to by Mr Deo and dated 28 April 2018 is not in the evidence. Ms Gleeson replied to Mr Deo in an email dated 5 July 2018. In her email Ms Gleeson noted that Mr Deo had been paid an additional $9023.29 in recognition of his service with the Albury City Council, and said that "it remains the view of the DDHHS that you have received all monies payable to you, with the exception of the agreed ex-gratia payment which is contingent on you providing a signed copy of the Deed of Settlement".
  1. [60]
    Mr Gleeson also said in this email that annual leave loading had been paid, that there was no entitlement to early retirement, redundancy or retrenchment, and that Mr Deo had been paid five weeks pay in lieu of notice on termination.

Health service submissions

  1. [61]
    The health service relied on the following propositions:
  • The applicant failed to take any action in relation to his application for reinstatement following the conciliation conference. He simply declined to execute the deed. He never disclosed any intention to proceed to arbitration until after the health service had made representations to the Commission on 21 September 2018 asking that the matter be closed;
  • If Mr Deo had a disagreement about the terms of the deed then he should have communicated those disagreements to the health service;
  • Contemporaneous emails support a conclusion that an agreement was reached;
  • The conciliation conference involved an offer of settlement which had been accepted. The acceptance was not conditional nor expressed in a way which indicated that the acceptance was subject to the terms of the deed or that the agreement reached was not enforceable until the deed was executed;
  • The Vice President's record of conference outcome is consistent with the health service's evidence and submissions;
  • Whether the deed provided for a general release or not is irrelevant. The central question for consideration is whether the agreement reached in the conciliation conference resolved the application for reinstatement;
  • Mr Deo was being advised by a representative who would have understood the terms of the deed discussed at the conference. Ms Lindsay was Mr Deo's agent who was acting under Mr Deo's written authority;
  • There is no doubt that Ms Lindsay had entered into an agreement with the health service. The terms of the deed were agreed and Mr Deo is bound by those terms.
  • The question to be answered is not "what were all the terms of the deal?". Rather the question is "was it a term of the deal that the application for reinstatement was resolved?".

   Mr Deo's submissions

  1. [62]
    Submissions made on behalf of Mr Deo advanced the following propositions:
  • The key question to be answered is "what was agreed on the day?";
  • Both Ms Gleeson and Mr Neilsen admitted in cross-examination that there was no discussion whatsoever of releases during the conciliation conference, and there was no agreement expressed from either Mr Deo or his agent, Ms Lindsay, to general releases;
  • While there may have been an in-principle agreement about the payment of a sum of money by the health service and the substitution of a resignation in lieu of a termination, a key term of settlement remained unresolved viz as to whether there would be releases and the breadth and scope of those releases;
  • The only value that Mr Deo could offer the health service in terms of an agreement was centred on the nature and scope of a release;
  • The additional $9,000 payment made after the event was evidence of Mr Deo concerns that he was owed more money and explained his decision not to sign the deed of release until those concerns were resolved. Mr Deo started to agitate over these issues fairly quickly after the conciliation conference as evidenced by his email to the Registry on 9 April 2018 and his email exchanges with Ms Gleeson commencing on 27 March 2018. Mr Deo subsequently made clear in an email dated 24 April 2018 that he wanted the outstanding issues associated with his final payment resolved;
  • Contrary to the submission of the health service, clause 3.1 of the proposed deed would have restrained or barred Mr Deo from claiming his statutory entitlements;
  • The omission of any settlement around the issue of release was a key consideration for Mr Deo. This matter was not discussed and not settled. On Mr Deo's evidence, he believed that he had further legal claims against the health service beyond his reinstatement application and he did not want to compromise those claims.
  • The inclusion of a general release term was a key concern to the health service. When it became apparent that the deed was not going to be executed, at no time did the health service offer to confine the releases to the application for reinstatement;
  • It should be inferred that the release clause was also a key and immovable requirement of the health service in terms of arriving at a settlement agreement. The facts support a finding that as at 14 March 2018, a key term of settlement remained in dispute and that a final meeting of minds had not been reached in the conference. There was some agreement in principle, but there was at least one key term to be finalised in further negotiations;
  • There was no conclusive and binding agreement between the parties at the end of the conciliation conference and the prospective settlement involved the possibility of new terms, or modifications to those already discussed, in particular the inclusion, and the scope of, any release clause;
  • In these circumstances the negotiations had not reached finality and Mr Deo was entitled to refuse to proceed if he was dissatisfied with the terms presented in the draft deed.

 Reasoning  

  1. [63]
    It is clear that the health service believed that the application for reinstatement had been resolved at the 14 March 2018 conference. On 15 March 2018, Ms Gleeson dispatched an internal email about the conciliation conference held on 14 March 2018. In the email Ms Gleeson advised that as a result of the conference "the matter was settled to the satisfaction of all concerned". She summarised the terms of settlement and said that she was in the process of preparing a deed of settlement. She said that the "terms of settlement will be contained in a Deed of Settlement currently being prepared".
  1. [64]
    Mr Neilsen's recollection of a settlement was supported by a copy of a diary note and a text message that he had sent to his Chief Executive Officer after the conference. The diary note relevantly referred to a "settlement" and recorded the terms of settlement, while the text message included a statement that "the Deo matter has been settled".
  1. [65]
    The Vice President's record of conference is consistent with the health service's view that a final settlement had been reached at the conference. In her record which involved the use of a template form, the Vice President chose the option "conciliation successful", rather than "parties still conferring"; she identified that the "matter resolved by agreement"; she completed a "record of outcome" which noted the terms of settlement, stated that agreement was in full and final settlement of all and any claims arising out of the employment/dismissal; and she marked affirmatively the statement "Withdrawal of Application upon terms of Settlement carried out. *". The asterisk drew attention to a note in the next section of the form headed "Type of Agreement".
  1. [66]
    In this section the person completing the form was asked to choose one of two options: 
  1. The terms set out above represent the basis upon which the application has been settled.  The parties intend to be immediately bound by the terms set out.  [*If the terms of settlement are not complied with by the Respondent the Applicant may elect to rescind the settlement]
  1. The terms set out above represent the basis upon which the parties intent (sic) to settle the application subject to the terms of a suitable:
  • Deed of Settlement being agreed (Applicant/Respondent to draft)
  • Reference/Certificate of Service being agreed
  • Other item (viz _______________________) being agreed
  1. [67]
    In not completing this section of the form the Vice President elected not to express a view about the type of agreement, given the options open to her on the template form. While  I consider her election to be inconclusive in terms of the matter to be decided in these proceedings, when viewed in its totality, the record supports a conclusion that Mr Deo's application for reinstatement had been resolved and that a final settlement agreement had been entered into between the parties on 14 March 2018.  
  1. [68]
    In his oral testimony, Mr Deo said that, at the time of the conference, he did not understand that the purpose of the conference was to try to reach a settlement of his application for reinstatement and that he did not want to settle the matter. Despite this approach however the only complaint that he had with the process was that the terms of the proposed deed did not mirror what was agreed at the conference on 14 March 2018 (T1-46):

So you were implying you didn’t sign the deed because you didn’t know which was the right one; isn’t that right?---Actually, I didn’t sign the deed because the conditions were not what was discussed during the – the conference. That was the main reason.

But you didn’t write back to the respondent and say, "I want different terms in the deed", did you?---I wrote an email to the – to the Commission in relation to the conditions. I don’t know how the conditions could have been rectified, whether to – through elimination or whatever, but I did not like those conditions. And those conditions were not only in – those conditions were only in the – in favour of Queensland Health.

  1. [69]
    This evidence founded the submission that a key term of the terms of settlement discussed on 14 March 2018 remained unresolved and that further negotiations were required before any agreement could be finalised.
  1. [70]
    It was not in dispute that in giving this evidence the applicant was complaining about the inclusion in the deed of settlement of a general release clause. Contemporaneous evidence supporting this position was provided by his 9 April 2018 email to the Industrial Registry. While the email did not particularise Mr Deo's complaint about the release clause, he provided a retrospective rationalisation in his affidavit where he maintained that, at the time of making his application for reinstatement, he always intended to make additional claims relating to bullying, discrimination and errors in his final payment.
  1. [71]
    While Mr Deo may have been motivated to make a range of claims against the health service following his dismissal, his evidence was that he did not proceed to do so on the advice of Ms Lindsay. He said that Ms Lindsay advised him to deal with the unfair dismissal claim first and then to address the claims of bullying and discrimination. He said that Ms Lindsay did not think that he was eligible for anything in terms of his final payment.
  1. [72]
    There is a temporal distinction to be made in that while Mr Deo may have actively explored or considered a range of retaliatory actions against the health service following his dismissal, it does not necessarily follow that he was committed to pursuing all these courses of action by the time that the conciliation conference was held on 14 March 2018. The only independent evidence of an unresolved claim was that provided in relation to the termination pay, but while Mr Deo raised this issue with Ms Gleeson on 27 March 2018, on balance, the issue had not been raised before this time.
  1. [73]
    In his affidavit, Mr Deo said that he did not recall accepting the offer of $15,000 and he suggested in effect that Ms Lindsay and the Vice President had made the decision for him. He also said that Ms Lindsay stated that she accepted the offer in principle because there were further issues to be discussed. I doubt that this is a true characterisation of events. If Ms Lindsay had made these pronouncements during the closing stages of the conference, I am confident that such a statement would have attracted the attention of Ms Gleeson and Mr Neilsen and would have caused some renegotiation of understandings reached in private conference. There is no evidence however of any such development.
  1. [74]
    I prefer the version of events provided by Ms Gleeson and Mr Neilsen to the effect that matters relating to termination pay, bullying or discrimination were not raised with them during the conciliation conference. I do not accept that there was any discussion in the conference about extra claims. If Mr Deo had raised extra claims with Ms Lindsay in private, it would have been expected that Ms Lindsay would have raised the issue with the health service during the conference. In open conference, it was improbable that Mr Neilsen would have questioned whether the release clause included a bar on bullying and discrimination claims when he was not aware at the time that such claims had been foreshadowed, or were in issue.
  1. [75]
    In this factual framework, it follows that I do not accept Mr Deo's submission that the scope of the release clause to be included in a deed of settlement remained unresolved at the end of the conference on 14 March 2018. Nor do I accept that the evidence about what transpired during the conference establishes that the release clause was a key consideration for Mr Deo during the conference.
  1. [76]
    In my view "extra claims" were not an issue in the 14 March 2018 conference, and because "extra claims" were not an issue, the release clause to be included in the standard deed did not attract any attention. In my view, Ms Lindsay would have understood that when reference was made to a standard deed, that such a deed would have included a general release clause. The health service wanted a general release and there was no indication from Ms Lindsay in the conference that such a term was opposed. The fact that the parties agreed after the event to modify the expression of the release clause does not alter the fact that a final settlement was reached on the day of the conference.
  1. [77]
    While Mr Deo's 27 March 2018 email to Ms Gleeson is evidence that he disputed the correctness of his final pay at that time, the evidence does not support a finding that his final pay was in issue when his application for reinstatement was resolved on 14 March 2018. Further, while the email exchanges on and from 27 March 2018 demonstrate that Mr Deo continued to challenge the correctness of his termination pay, none of these exchanges questioned the terms of settlement and Mr Deo never communicated directly with the health service and informed them that he disputed the terms of settlement or had any concerns with the terms of the deed.
  1. [78]
    Mr Deo's email to the Registry on 9 April 2018 is not determinative of anything other than that, three weeks after his application for reinstatement had been resolved, he was unhappy with the inclusion of a release clause in the terms of settlement. It was however too late for him to repudiate the agreement that he had entered into on 14 March 2018, and, in any event, the Registry had no power to interfere in the terms of the settlement. Finally, the proposition that the release clause be removed was patently unsustainable in a circumstance where it was only the inclusion of the release clause that delivered the benefits of the deed including the opportunity to resign and the $15,000 ex gratia payment.

Case law

  1. [79]
    It was common ground that the legal principles relevant to the determination of this matter are to be found in the case of Masters v Cameron[1]:

9. 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.

10. 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.

A case of the second class came before this Court in Niesmann v. Collingridge [1921] HCA 19; (1921) 29 CLR 177 where all the essential terms of a contract had been agreed upon, and the only reference to the execution of a further document was in the term as to price, which stipulated that payment should be made "on the signing of the contract". Rich and Starke JJ. observed (1921) 29 CLR, at pp 184, 185 that this did not make the signing of a contract a condition of agreement, but made it a condition of the obligation to pay, and carried a necessary implication that each party would sign a contract in accordance with the terms of agreement. Their Honours, agreeing with Knox C.J., held that there was no difficulty in decreeing specific performance of the agreement, "and so compelling the performance of a stipulation of the agreement necessary to its carrying out and due completion" (1921) 29 CLR, at p 185 : see also O'Brien v. Dawson [1942] HCA 8; (1942) 66 CLR 18, at p 31. (at p361)

11. Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own: Governor & c. of the Poor of Kingston-upon-Hull v. Petch [1854] EngR 995; (1854) 10 Exch 610 (156 ER 583). The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document, as in Summergreene v. Parker [1950] HCA 13; (1950) 80 CLR 304 or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed. These possibilities were both referred to in Rossiter v. Miller (1878) 3 App Cas 1124. Lord O'Hagan said: "Undoubtedly, if any prospective contract, involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and a dissatisfied party may refuse to proceed. But when an agreement embracing all the particulars essential for finality and completeness, even though it may be desired to reduce it to shape by a solicitor, is such that those particulars must remain unchanged, it is not, in my mind, less coercive because of the technical formality which remains to be made" (1878) 3 App Cas, at p 1149.

  1. [80]
    The health service contended that the agreement allegedly reached between the parties on 14 March 2018 fell within the second category of binding agreement identified in Masters. Mr Deo however argued that the negotiations occurring on 14 March 2018 fell within the third category identified in Masters.
  1. [81]
    In my view the evidence supports a conclusion that this case belongs to the second class described in Masters. I do not accept the evidence supports a conclusion that this case belongs to the third class as submitted by Mr Deo.  The contrast drawn in Rossiter v Miller[2] is apposite:

"Undoubtedly, if any prospective contract, involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and a dissatisfied party may refuse to proceed. But when an agreement embracing all the particulars essential for finality and completeness, even though it may be desired to reduce it to shape by a solicitor, is such that those particulars must remain unchanged, it is not, in my mind, less coercive because of the technical formality which remains to be made".

  1. [82]
    In my view, in this case all of the terms of settlement were agreed on 14 March 2018 and there was no scope for either party after the event to introduce new terms of settlement or to alter existing terms. The Vice President's record serves as evidence that the agreement reached on 14 March 2018 embraced "all the particulars essential for finality and completeness". 

Decision

  1. [83]
    Mr Deo's application for reinstatement was resolved by the agreement reached between the parties on 14 March 2018. It follows that there is no basis to entertain Mr Deo's application for the hearing and determination of his claim for reinstatement. The following orders are made:
  1. (a)
    That Mr Deo's application for reinstatement dated 20 February 2018 is dismissed;
  2. (b)
    That the deed of settlement prepared on 29 March 2018, and provided to Ms Lindsay on that date, be executed by Mr Deo no later than 12 June 2019 and returned to the Darling Downs Hospital and Health Service no later than 19 June 2019;
  3. (c)
    Upon receipt of the executed deed in accordance with the order above, the Darling Downs Hospital and Health Service is to pay Mr Deo the sum of $15,000.00 no later than 21 June 2019.
  4. (d)
    There be no order as to costs.

Footnotes

[1] Masters v Cameron (1954) 91 CLR 353

[2] Rossiter v Miller (1878) 3 App Cas 1124

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Department of Health – Darling Downs Hospital and Health Service) v Bhram Deo

  • Shortened Case Name:

    State of Queensland (Department of Health – Darling Downs Hospital and Health Service) v Deo

  • MNC:

    [2019] QIRC 84

  • Court:

    QIRC

  • Judge(s):

    Member Black IC

  • Date:

    04 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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