Liszt v Health Secretary in respect of Sydney Local Health District

Leave to appeal

1. Section 188 of the Industrial Relations Act 1996 (NSW) is in the following terms: 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.
2. The principles governing the grant of leave to appeal in this jurisdiction are well known. These principles were recently restated by a Full Bench of the Commission (Chief Commissioner P Kite SC, Commissioner D Sloan and Commissioner J Webster) in Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009 in the following terms:

Legal principles to apply "27 An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. 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: s 188(2) of the Act. 28 The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him [sic]: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]." 29 In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12]-[13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal." 30 The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles."

1. We also intend to apply these principles.
2. The appellant was unable to identify any issue raised on appeal which raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application or raises issues going to the proper administration of justice.

Error at first instance

1. We have formed the opinion that the decision under appeal was not tainted by error and the appellant has been unable to identify any such error.
2. Commissioner Sloan's decision contained the following: 28 The real questions before the Commission are whether a binding agreement was made between the parties on 28 February 2020 and, if so, whether there is any reason why the Commission should not give effect to it. 29 Both parties relied on Masters v Cameron in which Dixon CJ, McTiernan and Kitto JJ stated at 360: "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." 30 The Health Secretary submitted that the negotiated settlement "fell into category 1 or possibly 2 as recognised in Masters v Cameron". Mr Liszt submitted that the case falls into the third category. 31 To my mind this case falls more into the second category. Following the discussions on 28 February 2020 the terms of the settlement, including the terms of the deed to reflect that settlement, had been agreed between the parties. All that was left was for Ms Yu, on behalf of the Health Secretary, to create a "clean" version of the Deed and provide it to Mr Liszt for execution. She did that.
3. We agree with the Commissioner and note in addition that when the proceedings on 21 January 2020 went back "on record", the Commissioner used the following phrases: - agreed in principle on terms; - the terms of the agreement; - the agreed terms; - the terms of settlement; - there is consensus on each of those terms; - both parties and in particular Mr Liszt understand what the terms of settlement anticipate; - the mechanics of the settlement; - the settlement they [the parties] have reached this afternoon; - a more effective and commercial resolution to this matter; and - finalising the settlement.
4. At no point on 21 January 2020 did the appellant take issue of any of Commissioner Sloan's characterisation of what had occurred between the parties "off record".
5. Likewise, on 28 February 2020, the Commissioner used the following phrases when on record: - it has been possible for them [the parties] to agree or confirm the terms on which this matter will be resolved; - the proposed Deed of Release, which is all but finalised; - the settlement will remain confidential; - the details of the settlement; - both parties are well aware of what is expected of them under this settlement; and - I congratulate them on being able to iron out the large wrinkles in the fabric that allowed for the settlement to be confirmed.
6. Again, the appellant took no issue with the Commissioner's characterisation of what had occurred between the parties.
7. On the question of leave to appeal, the appellant sought to argue that his dismissal was not effected in accordance with the provisions Government Sector Employment Act 2013 (NSW) ("GSE Act") and the Government Sector Employment Regulation 2014. These submissions went substantially to the issue of his dismissal and in any event did not go to the issue before the Full Bench in this appeal. It was also submitted that the failure of the Chief Executive of the Sydney Local Health District to sign the deed of release that was prepared by the respondent and which embodied the terms of settlement, constituted a further contravention of the GSE Act. We reject these submissions.
8. The appellant also submitted that certain terms of the deed of release were contrary to the provisions of the Work Health and Safety Act 2011 (NSW). For example, it was argued that the requirement in the deed of release for the appellant to undergo Violence Prevention Management training and be assessed as satisfactory by the respondent was, in some way, contrary to the provisions of sections 105 and 106 of the Work Health and Safety Act which deal with the prohibition of discriminatory conduct. These submissions lacked substance and we reject them as well.
9. The appellant did not present a cogent argument as to how the Commissioner fell into error in making the critical factual findings leading to his conclusion at [31] of the Decision that the parties had reached a binding "category 2" agreement as understood from the judgement of the High Court in Masters v Cameron (1954) 91 CLR 353 at 360.
10. The appellant's submissions in respect of leave to appeal and the appeal were misguided. For example, the appellant argued that the Commissioner fell into error by not finding that his dismissal was unfair for various reasons. This was not a question the Commissioner was required to consider in the context of the stay application. The factual question he determined was whether the parties had reached a binding agreement for the settlement of the proceedings. Whether the dismissal was fair or not was not a relevant consideration in the determination of that question.
11. The decision under appeal restates a longstanding principle which exists in this jurisdiction to the effect that parties should be held to the settlement on which they have agreed. We refer to the Full Bench decision in Caleta, Trpimir v Northern Sydney Area Health Service [1995] NSWIRComm 38. That matter involved an appeal from a decision of a Conciliation Commissioner dismissing the appellant's unfair dismissal application on the basis that a settlement of the appellant's claim had been negotiated by the appellant's union. In its decision the Full Bench (Peterson J, Schmidt J and Patterson CC) stated: The appellant was seeking reinstatement to his former position with continuity of service for all purposes. The agreement reached between the Union and the respondent was that the appellant would be re-employed on the basis of six months probation and without continuity of service. It was the case of the appellant that the agreement entered into between the Union and the respondent was one which he had not authorised and by which he should not be bound. … The appellant was a member of the Union who enlisted its assistance in seeking reinstatement. He was represented by the Union in the negotiations it instituted with the respondent over his reinstatement. He had been a Union member for many years, indeed an elected official, the President of the Macquarie Hospital Branch. He remained a member of the Union at the hearing of the appeal. On the evidence there is no basis for the view which the appellant said he had formed that a deal had been done behind his back by the Union and the respondent. The appellant on his own evidence understood the basis upon which he was offered a job on 7 December. He accepted it. Why he did so may perhaps be explained by his stated love of his work, his absolute conviction that the job was 'his' and that he had done nothing wrong. His evidence was that he had in his mind that his discussions with Mr Burton about the matters of concern to him would be 'fruitful'. That the appellant did not succeed in convincing the respondent to restore his sick leave, long service leave and superannuation entitlements may well have been unexpected and a disappointment, but it is clear on the evidence that he understood that those things were not guaranteed if he returned to work on the basis of the offer made. In those circumstances we take the view that it would not do justice between the parties to permit the appellant to renege on the agreement negotiated on his behalf by his Union and understood and accepted by him. In our view it would be unconscionable to permit the appellant to take the benefit of that agreement and to ignore the conditions which were clearly attached to it. (emphasis added)
12. We agree with the Commissioner's observations at [40] of the Decision, in particular that "[i]t would undermine the clear legislative intention of the Act to permit a party, without proper reason, to walk away from a settlement reached in conciliation".
13. The appellant has not placed before the Full Bench any persuasive argument that the Commissioner misapplied the relevant law to the determination of the issue that was before him.
14. We discern no error in the approach taken by the Commissioner in ordering a permanent stay of the appellant's unfair dismissal proceedings.
15. We consider that there is no proper basis to allow leave to appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2020