Forsstrom and Ubs Ag Australia Branch [2005] NSWIRComm 1096 (29 June 2005)

Last Updated: 30 June 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Forsstrom and UBS AG Australia Branch [2005] NSWIRComm 1096

FILE NUMBER(S): 7618

HEARING DATE(S): 16/05/2005

DECISION DATE: 29/06/2005

PARTIES:

Aimee Marie Forsstrom

APPLICANT

UBS AG Australia Branch

RESPONDENT

JUDGMENT OF: Tabbaa C

LEGAL REPRESENTATIVES

APPLICANT

Self Represented

RESPONDENT

Mr D. Fitzharris

Shanahan Tudhope Lawyers

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 8 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Commissioner Tabbaa

29 June 2005

Matter No IRC 7618 of 2004

Aimee Maree Forsstrom and UBS AG Australia Branch

Application by Aimee Marie Forsstrom re unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996.

DECISION

[2005] NSWIRComm 1096

1 The applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 31 December, 2004 alleging that the respondent had unfairly dismissed her on 14 December, 2004. The applicant contended that she been employed from 22 September, 2003 until her dismissal as a Messaging Specialist (Global).

2 The file was allocated on the same day and was set down for conference and directions at 9.30 am on 27 January, 2005 at which time the following appearances were entered:

Mr. R. Barwick Agent, on behalf of the applicant, with Ms A. Forsstrom and her mother

Mr. D. Fitzharris Solicitor, on behalf of the Respondent, with Ms K. Papaiounnou (Legal Counsel) and M B. Rubens (Client Relationship Manager)

Initial Conciliation Proceedings

3 Ms Forsstrom had been absent from work with a medical certificate for the period 09 September, 2004 until 02 October, 2004. She had been dismissed for an alleged failure to provide any explanation for a further absence from work from 05 October, 2004 until 14 December, 2004.

4 The proceedings had resulted in a conciliated settlement being achieved.

5 As the required undertaking had not been provided by the applicant in written form, she was required, and did provide, an undertaking on the record, that she would not proceed for redress under, or seek an inquiry under, any Act or statutory instrument giving her alternative rights in relation to the said dismissal.

6 Details of the confidential settlement were recorded in an extract of the transcript of the proceedings that was marked as "Restricted". Immediately prior to the conclusion of those proceedings, the Applicant's Solicitor was asked if the record set out the settlement as was agreed by the Applicant and Mr. Barwick had responded affirmatively. The Applicant was to file a Notice of Discontinuance within 28 days and leave was reserved to either party to seek to have the matter returned to the list on provision of 14 days notice if some hitch occurred between then and the execution of the Deed of Release proposed by the parties.

7 At 2.45 pm later that day, a call was received from Ms Forsstrom asking for the originals of her medical certificates to be returned to her as she required them to make a claim for workers' compensation.

Request for further Listing

8 On 11 March, 2005, a request was received from the Applicant for a re-listing of the matter. She indicated that she wished to represent herself. She complained that her Workers' Compensation claim was not progressing swiftly and she did not wish to sign away her rights (presumably meaning the s. 90 undertaking) as the matter ought to have progressed as a sexual harassment matter.

9 As the Applicant had refused to sign the Deed of Release, the matter was re-listed on 16 May, 2005 for the purpose of explaining to her those provisions of that Deed that she had concerns with.

Second Conciliation Conference

10 Notice of the listing of that conference was the first time the Respondent became aware that there was an issue with the settlement. The Applicant, who was self-represented on that occasion, denied that she was seeking to re-negotiate the settlement. From her submissions, it appeared that she had been frustrated in her claim(s) in another/other jurisdiction(s) and was therefore seeking to obtain more money in the settlement of this claim.

11 Nevertheless, a detailed explanation was provided to the Applicant as to what would be involved in conducting an arbitration should the matter be re-opened. She asked for "five minutes" to make a quick phone call to her father to let him know what was happening. Following a detailed explanation as to the procedure for arbitrating the claim and an explanation on costs, an adjournment was granted to the applicant to call her father.

12 The Commission had another matter listed at 3 pm. It was approximately 3.56 pm when the adjournment was granted. She was called back in at approximately 4.09 pm, a period of approximately 13 minutes. A filing schedule was directed in relation to submissions as to whether or not to re-open the matter. Although a detailed and careful explanation was provided to the Applicant, she sought "advice" on outcomes. The applicant insisted that all she needed "was a turnaround of a couple of days" but she was given 7 days (to 23 May, 2005) in which to file her submission regarding re-opening the matter.

Subsequent Events

13 On 20 May, 2005 a facsimile transmission was received from the Applicant attaching a letter from her psychiatrist to the effect that she would not be able to comply with the filing schedule. Dr. Pickering's certificate, dated 19 May, 2005, stated that she had consulted him on 17 May, 2005 and he had declared her unfit from 17 May to 21 June, 2005 inclusive. The certificate indicated that she was unfit to either represent herself or adequately instruct a solicitor in the conduct of her matter.

14 On 03 June, 2005 correspondence was forwarded to the applicant instructing her to make contact on or immediately after 21 June, 2005 to provide either a further medical certificate or to indicate whether she was fit to recommence the proceedings so that a revised schedule could be issued.

15 The applicant made telephone contact on 21 June, 2005 to advise that she had an appointment with Legal Aid on the following day and would advise of the outcome.

16 A further telephone call was received from the Applicant on 22 June, 2005 seeking a 4-week adjournment pending a consideration of her claim by Legal Aid and advice as to whether representation would be provided. She was asked to put her request in writing and she undertook to do that by 23 June, 2005. A formal request was not received until 28 June, 2005.

Consideration

17 It is noted from the transcript of the conciliation and directions hearing on 27 January, 2005 that the Applicant, at various stages during the conference, spoke out on her own behalf to explain certain issues despite being represented by an Agent. She had been present and participated in the private conference that led to the settlement of the claim. She had been accompanied by her mother.

18 During that conciliation conference, two documents had been tendered on her behalf from medical practitioners. Relevant sections from those documents have been extracted below.

19 Dr. John D. Pickering, her treating psychiatrist, supported her request for leave from her workplace. In that report, dated 20 September, 2004, Dr. Pickering stated that the applicant suffered from panic attacks which, at that point, were "not feared nor [were] situations in which they may arise avoided". He described her "cognition" as "intact".

20 In a later psychological evaluation by Dr. Emad Girgis, on 14 December, 2004, the following observation was made: "Ms Forsstrom was well oriented to time, date, place, her identity, and the circumstance. ... Her recent and remote memory were intact....Her intellect is estimated to be within the normal range.... Her thought processes were coherent and her perceptional phenomena revealed no hallucinatory experiences. Her thought content revealed no bizarre or psychotic phenomena... It was recommended that Ms Forsstrom reduce her exposure to this stressful environment by having a break or leave..."

21 During the conference held on 16 May, 2005, the relevant extract of the transcript which had recorded the confidential terms of the settlement were read out to the Applicant:

Commissioner: .... "Finally, the settlement is in full and final satisfaction of all matters dealing with the employment relationship between the parties and the subject matter of IRC 7618 of 2004 with the exception of pending workers' compensation claim or claims.

In return for that, the applicant will receive a sum of $7100 gross less the appropriate taxation deduction. That amount is made up of four weeks' wages calculated on the basis of $63,000 per annum and that equates to $5250 gross per month plus a shift premium of $1850 per month. That will be $7100 less the appropriate taxation deduction. Is that the settlement that was agreed to by the applicant, Mr. Barwick?

Barwick: It is, Commissioner."

22 Despite the above, the Applicant insisted that she thought an extra one month would be paid in addition to the above settlement. She agreed that she was aware of her financial loss at the time of the initial conference. She also agreed that she had been accompanied by her mother and had been represented by an agent. She further agreed that she had consented to that settlement but added, "Which I believed and my mother believed was to be ... the resignation payout. I am seeking for at least the additional four weeks."

23 Towards the conclusion of that conference, the Applicant confirmed that she understood what was required of her, that is, to prepare a written submission as to why the claim should be enlivened.

24 The medical certificate received shortly thereafter indicated that the applicant was unfit to either represent herself or adequately instruct a solicitor in the conduct of her matter.

25 Despite a written request to the Applicant, no subsequent medical evidence has been received as to her current condition. The Applicant did not comply with a request that her application for a further adjournment to be put in writing until 28 June, 2005.

Decision

26 On 28 June, 2005, a facsimile transmission was received from the Applicant, dated 22 June, 2005, in which she confirmed her request for a 4-week adjournment. She advised that she had met with Legal Aid yesterday (22/06/05). She gave the impression that Legal Aid had agreed to represent her. To date, no notice of appearance has been filed on her behalf by that body.

27 There is no medical evidence to suggest that even if the Applicant was represented, that she can adequately instruct any advocate in the conduct of the matter. In her facsimile of 28 June, the Applicant had stated, "I am not in the position to represent myself my current state is still to fragile and I am still suffering panic attacks regularly which impacts upon myself to represent myself or to completely understand the proceedings".

28 Indeed, the latest medical opinion of Dr. Pickering's, dated 19 May, 2005, declared her unfit to either represent herself or adequately instruct a solicitor in the conduct of her matter.

29 It is in the interest of both parties to provide closure of the matter. It is not in the Applicant's interests to prolong the matter and allow her to agonise over her dismissal and its redress. It is also unfair to the Respondent firm, which has incurred legal costs in defending the claim, to be left in limbo unaware of when the matter will eventually be finalised.

30 As the Applicant had admitted, during the conference on 16 May, 2005, that she had talked about the confidential settlement to other parties, I propose to issue the relevant terms in the form of the following order:

ORDER

31 There are no admissions of liability by either party in relation to the claim for unfair dismissal;

32 The Respondent will pay to the Applicant a sum equivalent to four (4) weeks' pay ($5250) plus a shift premium over that duration ($1850). In other words, the Application will receive the gross sum of $7100 less the appropriate taxation deduction;

33 A Certificate of Service is to be issued to the Applicant confirming her resignation from 14 December, 2004 for personal reasons, the duration of her employment, the classification in which she had been employed and the duties she had undertaken. Ms Rubens will be named as the contact person for any verbal references required by prospective employers;

34 The parties would not make any disparaging remarks about one another.

35 The terms of settlement represent a full and final satisfaction between the parties of all claims and actions relating to, and arising from, the contract of employment of the claimant and subject matter of the unfair dismissal claim with the exception of any pending workers' compensation claim(s);

36 The terms of settlement will be met within seven (7) days of today's date.

37 Matter No. IRC 7618 of 2004 is concluded.

I. Tabbaa

COMMISSIONER

LAST UPDATED: 29/06/2005