Bakar v. Department of Technical and Further Education of New South Wales [2009] NSWIRComm 1082

CASES CITED: Barton v. Armstrong (1973) 2 NSWLR 598 Tasovac v. New South Wales Police Service (1998) 83 IR 410

APPLICANT applicant appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT Kylie Nomchong

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Josephine Bakar and the Department of Education and Training of New South Wales

Application under S.84 of the Industrial Relations Act, 1996

1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act Ms Josephine Bakar has lodged an application concerning the termination of her services as a recruitment officer (at the Sydney Institute). Ms Bakar's services were terminated on Wednesday, 6 May, 2009 after six years of employment for alleged misconduct. In her Part 6 application she has sought re-employment to another position with the Department of Technical and Further Education or, alternatively, monetary compensation in lieu thereof. There are currently unresolved independent proceedings initiated by Ms Bakar under the 1977 Anti-Discrimination Act before the Administrative Decisions Tribunal in which she alleges discrimination in employment with the TAFE.

2 The matter was allocated initially to Cambridge C whose attempt at conciliation in proceedings on Tuesday, 16 June, 2009, Friday, 3 July, 2009 and Friday, 7 August, 2009 was unsuccessful. Initially, negotiations had taken place and an agreement purportedly achieved between the parties. It was a feature of that agreement that Ms Bakar would receive monetary compensation, the TAFE would review the status of the allegation of misconduct alleged against Ms Bakar on her employment file and she would resign and file a notice of discontinuance in due course. The parties were to enter into a deed of release to give formal effect to the agreement reached. But Ms Bakar sought to renegotiate the settlement reached. No deed of release was completed to give effect to the agreement reached and no notice of discontinuance was received from Ms Bakar.

3 Instead, in accordance with Practice Direction No.17, standard directions were issued with respect to the matter. The TAFE had in the proceedings before Cambridge C foreshadowed a notice of motion to strike the matter out on the basis that Ms Bakar's claim had already been finalised. The TAFE was to file and serve its evidentiary material in support of its claim by Friday, 28 August, 2009, Ms Bakar's response was to be no later than Friday, 18 September, 2009 and any further reply by the TAFE was to be no later than Friday, 25 September, 2009. At the request of the TAFE, directions were altered by Walton J - Vice President of the Commission in chambers on Tuesday, 1 September, 2009. The TAFE was to now file and serve its material in support of its notice of motion by Friday, 4 September, 2009 and Ms Bakar's material was to be provided by Friday, 25 September, 2009 with the TAFE having the opportunity to provide anything in reply by no later than Friday, 2 October, 2009.

4 The matter was programmed for arbitration to consider the TAFE notice of motion on Wednesday, 7 October, 2009. In the hearing Ms Nomchong represented the TAFE and Ms Bakar appeared unrepresented. At issue from the TAFE notice of motion is the assertion by the TAFE that the matter has settled already. Further, and as an alternative, the TAFE argues that, in view of the action she had taken before the ADT, her Part 6 application would fail through the operation of S.90.

5 I will deal with S.90 first. It reads as follows:

"The Commission must not determine an applicant's claim by making an order under S.89 if: (i) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (ii) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument."

Action taken under the Anti-Discrimination Act would fall under the restrictions imposed by S.90. Ms Bakar has not completed the undertaking required by S.90 for her Part 6 application to date and the question remains whether she may now do so. However, S.90 only presents a barrier if the action being contemplated elsewhere than Part 6 does not concern the dismissal but, for instance, the terms of the employment. The words that govern S.90 are "…in relation to the dismissal…" [ Tasovac v. New South Wales Police Service (1998) 83 IR 410 at p.413]. I understand that the claim which Ms Bakar has made to the ADT concerns her claim for a transfer and employment on a part-time basis, not her dismissal. Consequently, it does not necessarily follow that S.90 would represent any bar to her Part 6 claim.

6 But the question of the alleged agreement already reached is another matter, in my opinion. The fundamental question is whether or not an agreement has been made between the parties. It is customary for a deed of release to be provided to give formal effect to the settlement reached in Part 6 proceedings. But there are no formal requirements to effect a settlement of a Part 6 claim. A handshake may suffice to provide a binding agreement between the parties.

7 Of course, an agreement made under duress or under a mistake of a fundamental nature of the agreement reached is no agreement at all. At common law, contracts of any nature may be avoided if it is established that agreement was obtained by duress, ie induced by fear "…which could be assumed to some extent to paralyse the will…" [Barton v. Armstrong (1973) 2 NSWLR 598 at p.606]. And, of course, if there had been a fundamental misunderstanding over the terms of an offer made, there can be no acceptance.

8 I accept that Ms Bakar was acting under some stress with her Part 6 application (and the proceedings she had also initiated in the ADT). Part 6 applications concerning allegations of misconduct and dismissals are naturally emotional issues for any employee involved. Ms Bakar recorded in an affidavit she supplied for the hearing that she believed that she had been "bullied" by TAFE at the time she entered into the agreement and she wrote:

"....The stress and turmoil had taken their toll and I was extremely fragile at the time of the dismissal hearing. Now that the dust has settled a little and time is on my side, I am now applying for arbitration with the hope that a just and fair decision can be achieved and that my dismissal case can be reviewed..."

The TAFE refutes any claim that Ms Bakar was under any duress when she made the agreement with the TAFE.

9 In some instances, it may be the position that an agreement reached was in such vague terms that there is an element of doubt in the minds of the parties as to what they have actually accepted. In such circumstances the parties may not have been ad idem in the negotiations and the purported agreement which flowed from those negotiations would really be no agreement at all. But I am satisfied that is not the case here. The terms of the agreement were set out in considerable detail and Ms Bakar clearly accepted the terms of settlement offered to her only to later change her mind. It is too late for her to do so.

10 Simply stated, Ms Bakar reached an agreement and the matter had, in fact, been finalised at that time. She has claimed in her affidavit that at the time she had reached the agreement with the TAFE:

"....I couldn't think clearly and I conceded to a verbal agreement which was definitely to my detriment. I didn't realise this until a few days after the case when I had sufficient time to review the outcome..."

But the agreement with the TAFE had been reached and Ms Bakar was committed to it.

11 In fact, on Wednesday, 30 September, 2009 Ms Bakar actually signed the deed of release provided to her and that was provided to me in the proceedings by Ms Nomchong. Ms Bakar only handed the signed deed of release to solicitors representing the TAFE late on Tuesday, 6 October, 2009, however. Ms Nomchong has asserted that Ms Bakar's conduct with her Part 6 application was frivolous and vexatious. Ms Nomchong makes no application for costs against Ms Bakar only because the terms of the deed of release preclude it. 12 I propose to dismiss Ms Bakar's Part 6 application on the basis of the settlement reached between the parties.

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