Allchin v Commissioner of Police

LEGISLATION CITED: Industrial Relations Act 1996

Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170 Dee Donovan and Tanya Sullivan t/as Blaze on Stage Pty Ltd [2005] NSWIRComm 362 CASES CITED: King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 McLennan & Anor v Infinity Constructions Pty Limited & Ors [2007] NSWIRComm 10

Mr Tareq Altaranesi (Appellant in person) LEGAL REPRESENTATIVES: Mr A Britt of counsel (Respondent) Director General of Department of Health

• 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH CORAM: KAVANAGH J GRAYSON DP CONNOR C

TAREQ ALTARANESI AND THE DIRECTOR GENERAL OF THE DEPARTMENT OF HEALTH IN RESPECT OF SYDNEY SOUTH WEST HEALTH SERVICES AS A DIVISION OF THE NSW DEPARTMENT OF HEALTH

Application by Tareq Altaranesi for leave to appeal and appeal against a decision of Commissioner Bishop given on 5 July 2010 in Tareq Altaranesi and the Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health [2010] NSWIRComm 1037

1 Before the Full Bench is an application for leave to appeal and appeal against the decision of Bishop C given on 5 July 2010 in Tareq Altaranesi and The Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health [2010] NSWIRComm 1037. Bishop C dismissed the appellant's claim under s 84 of the Industrial Relations Act 1996 ("the Act") finding pursuant to s 174 of the Act that she was satisfied agreement had been reached between the parties which agreement had been reflected in a document entitled Terms of Settlement which Terms of Settlement had been executed.

History 2 Bishop C had began an arbitration on 1 June 2010 of a claim brought under s 84 of the Industrial Relations Act 1996 by Mr Altaranesi asserting he had been dismissed unfairly by the respondent. He asked for reinstatement. Mr Altaranesi was represented by a Solicitor and Counsel at the arbitration. The transcript reveals, at the hearing, the appellant had the assistance of an Arabic Interpreter (in prior conciliations he had also had the assistance of an Arabic Interpreter). 3 Midway through Mr Altaranesi's evidence the matter, by agreement between the parties, went back into conciliation. Agreed Settlement Terms were reached (which terms were signed by the Solicitor for the appellant and the appellant himself). 4 The Terms of Settlement were tendered before the Commission (given the legal questions raised) and relevantly reads as follows: In accordance with Section 84 of the Industrial Relations Act 1996 (NSW), the parties have conferred on 1 June 2010 and have settled this matter by conciliation.

Without admission of liability, the Respondent has agreed to pay · $ . . .

less any amount the Respondent must deduct on account of taxation ('Sum") to the Applicant on or before 15 June 2010.

Payment of the sum is in full and final settlement of all present and future claims that the Applicant may have against the Respondent in relation to the Applicant's termination of employment with the Respondent.

The parties and the Commission must keep the terms of the settlement confidential and must not disclose them to any person except if required by law, to enforce the terms of settlement, to obtain professional legal or accounting advice, to obtain advice from the Applicant's Union or to advise the Australian Taxation Office. Any matters raised during conciliation proceedings must also be kept confidential and not disclosed to any other person.

The parties agree that neither the applicant nor the respondent shall disparage each other following these proceedings.

The payment of the sum to the applicant constitutes the final term of settlement and the parties consent to these proceedings being determined as concluded by consent as soon as the sum is paid.

The proceeding in the Supreme Court in Case Number 13941 of 2009 are discontinued with no order as to costs in that matter.

The Local Court proceedings Case Number 62789/09/172 are settled with no order as to costs.

The Applicant to be provided with the following documents by 15 June 2010 by the Respondent: (a) Statement of Service; and (b) Statement of Regret

The Applicant at his liberty may provide the Respondent with a document to be placed on his personnel file in HR (RPAH).

The Applicant at his liberty may provide the Commission with a document to be placed on the Commission's file in this matter.

This settlement is without admission by the parties. 5 The application for reinstatement was adjourned by Commissioner Bishop to allow for the Terms to be complied with then a Notice of Discontinuance was to be filed in the Commission. 6 On 22 June 2010, the Commission received a handwritten letter from Mr Altaranesi, the appellant, in the following terms: I am applying to refresh the case as the respondent failed to produce statement of regret and statement of service which meet my requirement as agreed. And I take the opportunity to advice (sic) the Commission that I ceased any authorisation that was given by Mr Majed Kheir as my solicitor and is no longer become not (sic) my solicitor. I wish the Commission to re-list the case and look forward to hear about the date of new direction meeting. 7 Commissioner Bishop relisted the s 84 application and considered the effect of s 174 of the Act. Section 174 of the Act states: 174 Powers when application settled by conciliation If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may: (a) dismiss the application, or (b) make an order on the agreed terms for settlement. 8 As to the effect of s 174, we adopt the reasoning of Staff J in McLennan & Anor v Infinity Constructions Pty Limited & Ors [2007] NSWIRComm 10, as follows: 20 The provisions of s 174 of the Act have been considered in the following decisions: Fox v GIO , Shunmoogam Pragalathan Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297 and Best v Barlings Beach Community Pty Limited and Ors . The principles which emerged from these decisions are that s 174 limits the making of orders in terms agreed by the parties in settlement of the matter and no more ( Schmidt J in Best ) and s 174 provides a discretion which enables the Court to give consideration to the "validity or illegality" of any settlement agreement and to consider any unconscionable conduct on the part of one or other of the parties (see Walton J, Vice-President in Fox ).

21 Put simply, s 174 gives the Court the power to make such orders as the parties are prepared to consent to the Court making, for the purposes of bringing the proceedings to a close. 9 The appellant appeared on 5 July 2010 but without his solicitor or counsel or an interpreter. He gave evidence. The respondent gave evidence as to how the matter had progressed following the agreed terms being signed. Bishop C dismissed the s 84 application to reinstate and found under s 174 of the Act, the matter was finalised.

10 The appellant then, on 23 July 2010, filed an "Application for Appeal" in respect to the decision of Bishop C and, on 5 August 2010, the Commission made orders concerning preparation of the appeal. 11 On 15 September 2010, the appellant filed an "Appeal Book", Chronology and "Submission" and "all evidences". The appeal raises the following questions: 1. The Commissioner did not provide natural justice: I have required an Interpreter for me in the hearing, but the commissioner refused, while the commissioner tried to bring an interpreter for the witnesses of the respondent., I could not understand what was happening in the hearing. 2. Identifying a wrong issue and made an erroneous finding: a. The contents of settlement, I did not required it as it. I required aplogise (sic) for unfair dismissal. c. I did not give instruction to my lawyer to accept regret statement, he told me that he will make apologise, and will give statement that they did not dismissed me. 3. The commissioner during the conciliation was acting under actation (sic). 4. Unreasonableness: To make a settlement on no apologise, particularly I was 54 years old and I have never ever dismissed in my employment history, this unreasonable to accept less than apologise, or re-instatement. 12 The Grounds of Appeal in the Application for Appeal are: 1. Not providing natural justice. 2. Error in Law 3. Identifying wrong finding. 4. Reaching a mistaken conclusion 5. Acting under dictation 6. Taking into account irrelevant consideration. 13 The appellant on the appeal presses three basic grounds: · there was a failure by Commissioner Bishop to provide him with an interpreter at the hearing on 5 July 2010; · he was not given natural justice at the hearing on 5 July 2010; · the Statement of Regret provided to the appellant by the respondent was not acceptable.

Leave to Appeal: Applicable Principles 14 In order to prosecute his appeal the appellant must first make out a successful case for leave to appeal. This approach is warranted under s 188 of the Act which provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 15 The appellant's reasons as to why leave should be granted are directed towards Bishop C's findings. A consideration of those findings involves mixed issues of fact and law. An inquiry at appellate level is concerned with whether the findings of fact and law, made at first instance, reveal any error warranting appellate intervention: Allchin v Commissioner of Police (No 2) [2007] NSWIRComm 280; (2007) 168 IR 170. Whether leave to appeal should be granted, however, involves different considerations.

16 In Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380, the Full Bench, after observing that in accordance with s 188(2) of the Act, "... leave will not lightly or automatically be granted", gave some instances where leave might be successfully granted. These included whether the appeal (at 382): ... raises substantial issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application.

(see also Dee Donovan and Tanya Sullivan t/as Blaze on Stage Pty Ltd [2005] NSWIRComm 362 (at [48]). 17 Leave to appeal has been granted where demonstrable error has been disclosed in the first instance decision. The Full Bench in King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407, stated (references omitted) at [54]: Having regard to the submissions of the appellant on the question of leave in his appeal, it is plain that in large measure, the appeal seeks to challenge the findings of fact made by his Honour. As was made clear by the Full Bench in Knowles an appeal which seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price at [4]: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 18 An appeal against a decision of a single Commissioner is to be addressed with t-he statutory emphasis on the primacy of first-instance decision making (see Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at (392-393) and Crewdson v NSW Department of Community Services (2003) 131 IR 217 at [13]). In considering any appeal it is not of consequence that a Full Bench might have determined the matter differently (see Western Sydney Area Health Service v Gibson (2001) 109 IR 359). There must be grounds established for the grant of leave.

Conclusion 19 The learned Commissioner, on 5 July 2010, accepted that under s 174 the appellant's application should be given consideration. The appellant gave evidence but without the assistance of an interpreter. He was self-represented. When a question caused him some difficulty, an inquiry was made of him and he said "Sorry, my English is not good, but I try, okay?". 20 Mr Altaranesi elected to go ahead and give evidence. We are satisfied the transcript does not support there was any breach of the natural justice principles in the conduct of the hearing. 21 In her decision, Commissioner Bishop held there had been compliance by the respondent with the Terms of Settlement. The learned Commissioner was satisfied the terms themselves provided for a conclusion of the proceedings on payment of monies which monies had been paid and accepted by the appellant; there had been compliance by the respondent with the other terms of settlement; comment by the appellant was not required by the Terms of Settlement as to the content of the Statement of Regret. It is noted the Statement of Regret has been re-issued on letterhead. Commissioner Bishop then considered the effect of s 174 of the Act and the relevant authorities on the application of s 174, finding, in effect, there was no invalidity or illegality in the agreement nor any unconscionable conduct by the respondent. The learned Commissioner then dismissed the primary application. 22 We are satisfied, given the learned Commissioner's reasoning, it was open to her to dismiss the application under s 84 after concluding to her satisfaction there were no grounds under s 174 to reconsider the settlement terms. 23 Therefore, the appeal is no more than a challenge to a Decision with which the appellant does not agree. It turns on particular facts. Further, it has no wider application than to the interests of the parties. No new issue of principle or any matter that has not already been the subject of substantial jurisprudence is raised. There is no arguable claim the Commission has fallen into error. Accordingly, the matter does not warrant a grant of leave.

24 We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. There shall be no orders as to costs.

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