DECISION NO:540/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - JURISDICTION - PRACTICE AND PROCEDURE - whether applicant barred from proceeding with APPLICATION because she had signed a release.

 Industrial Relations Act 1988 (Cth) s170EA 





 

BAHONKO v FREEMASONS HOSPITAL

VI96/1675


Before:                       MURPHY JR
Place:                         MELBOURNE
Date/s of hearing:     6 NOVEMBER 1996
Date of judgment:    6 NOVEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI96/1675

BETWEEN:

AND

BEFORE:      MURPHY JR
PLACE:         MELBOURNE
DATE:           6 NOVEMBER 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.   The application is dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI96/1675

BETWEEN:

AND

BEFORE:      MURPHY JR
PLACE:         MELBOURNE
DATE:           6 NOVEMBER 1996

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

On 15 May 1996 the applicant issued these proceedings seeking a remedy under s170EA of the Industrial Relations Act 1988 (“the Act”).  The respondent has taken a specific point that the applicant is barred from proceeding with her application because on 2 May she accepted a voluntary departure package from the respondent. 

Prior to accepting the monetary sum representing her entitlements under that package, the applicant signed a document releasing the respondent from any claims of any description, including claims under the Act.

The respondent called evidence from its then general manager, Mr Whittingslow, who is now its managing director.  He gave evidence that the applicant had telephoned him on 2 May.  He returned the call about midday and the applicant had enquired whether any departure packages were available.  He did not have her entitlements under a package at hand, but had rung her back a short time later.  He had advised her that although the offers of voluntary departure packages had closed, he was prepared to offer her a package.  He detailed her entitlements and the applicant advised him that she accepted it.  He had then arranged to prepare the appropriate paper work and the applicant was to come in to sign that paper work.  A meeting was arranged at 3 o'clock for her to attend and sign the documentation. 

The applicant's account of these telephone calls was that she claimed that she first sought to postpone a meeting that was due later that day with the director of nursing.  Mr Whittingslow could not recall the applicant asking to postpone the meeting.  Further, the applicant said that she did not accept the departure package over the telephone but said she would only just come in to look at it.  On this point, I accept Mr Whittingslow's evidence that the applicant has said that she would accept the departure package after he had detailed the figures to her. 

A meeting then occurred at 3 o'clock between the applicant and Ms Fromano, an industrial relations consultant retained by the respondent.  I am satisfied that at that meeting the details of the letter of offer of 2 May (Exhibit R1), were explained by Ms Fromano to the applicant.

The applicant queried the annual leave payment and in Ms Fromano's presence rang the Department of Industrial Relations about it.  Clause 8 of the letter relates to the withdrawal of an Employee Relations Commission of Victoria proceeding that the applicant had issued earlier in the year.  Ms Fromano explained the effect of clause 8 and also clause 9, which is a general release clause.  I am further satisfied that Ms Fromano, in this conversation, offered the applicant the opportunity to take the documents away and make a further appointment to discuss them if she had any queries.

It was the applicant's evidence that she told Ms Fromano that she did not accept or agree with what she was signing.  She said that she had been feeling unwell at the time and had not slept the night before and felt under pressure because of the impending meeting with the director of nursing, Ms West, in relation to an incident.  Ms Fromano maintained that at no stage did the applicant tell her that she was feeling unwell.  She said that the applicant appeared unsettled and it was at that point that she suggested to the applicant that she take the documents away.  The applicant had said she did not wish to come back to the hospital.  Ms Fromano gave specific evidence that she referred to the Industrial Relations Act, and the Employee Relations Commission, and claims such as dismissal and other employee related matters, and indicated to the applicant that no further claim could be made against the hospital if she signed the document and accepted the payment.  In cross-examination the applicant admitted that the letter had been read to her.  She also said that she understood that the effect of a voluntary departure package was that you were paid an amount by the employer and you do you not return to work.

The applicant maintained that the payments in the package were only her entitlements anyway and that it was not a voluntary departure package.  She admitted, however, that at the time she did not wish to go back to work.  She said, "I understood that if I accepted the cheque I would not go back to work".  She maintained that contrary to the terms of the package she has not withdrawn her proceedings in the Employee Relations Commission of Victoria.  In evidence was a decision wherein the ERC had stated:

            “Subsequently I was advised by the respondent by telephone that a termination of employment of Ms Bahonko had been effected by means of voluntary termination package.  This was confirmed by Ms Bahonko by means of a telephone communication on Wednesday, 8 May 1996.”

The applicant called evidence from two social workers and a referral service that she had contacted on 1 May seeking assistance.  Those organisations had been unable to provide her with immediate assistance. 

The central finding in this matter is whether the applicant had voluntarily agreed to execute the release contained in the letter of 2 May.  On this point I accept the evidence of Ms Fromano that the applicant did not indicate any reservations about signing the document.  I accept she was offered the opportunity to take it away to consider it.  Further I accept that Ms Fromano's version of events is more likely to have occurred.  She had the carriage of the Employee Relations Commission proceeding on behalf of the respondent and it inherently unlikely that she would have forced the applicant to execute a document compromising those proceedings in circumstances where the applicant was not freely giving consent.  I therefore do not accept the applicant's account that she voiced unhappiness at the document or her execution of it. Further I do not accept that she did not understand the purport of the document.

There was no evidence that she conveyed to the respondent that she was not in any mental or medical condition wherein she did not understand the nature and quality of her acts.  Further, there was no suggestion of any underhand treatment, oppression or misrepresentation by the respondent.  On the contrary, the redundancy round had closed and the applicant was offered the opportunity to participate at her own request.  The applicant has accepted the document and banked the cheque.  The ERC decision is evidence that on 8 May the applicant confirmed that she had accepted a voluntary departure package.  There was no medical evidence before the Court that shows that at that date the applicant was unable to confirm that to the ERC. 

I am satisfied that the respondent is entitled to rely on the provisions of the 2 May document in these proceedings.  The document specifically refers to the Industrial Relations Act and bars this claim.  The applicant is bound by the document she has signed.  She is bound by her own action in accepting and banking the cheque in exchange for her execution of the document.  The respondent has made out its preliminary point and the application must be dismissed.

I certify that this and the preceding four (4) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.

Associate: KAREN HALSE
Dated: 6 November 1996


APPEARANCES