Jiang v Sasc Pty Ltd [2005] NSWIRComm 1198 (22 November 2005)

Last Updated: 22 November 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Jiang v SASC Pty Ltd [2005] NSWIRComm 1198

FILE NUMBER(S): 1948

HEARING DATE(S): 22/11/2005

EX TEMPORE DATE: 22/11/2005

PARTIES:

APPLICANT

Yin Zhu Jiang

RESPONDENT

SASC Pty Ltd (ABN: 74092075217)

JUDGMENT OF: Cambridge C

LEGAL REPRESENTATIVES

APPLICANT

Mr E Smith of counsel, with

Mr P Vouroudis, solicitor from

Photios Vouroudis & Co

RESPONDENT

Mr J Law, agent, from

John F Law & Associates

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

JUDGMENT:

- 5 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COMMISSIONER CAMBRIDGE

22 November 2005

Matter No IRC 1948 of 2005

Yin Zhu Jiang and SASC Pty Limited

Application by Yin Zhu Jiang re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DETERMINATION OF PROCEEDINGS

AND

ORDER

[2005] NSWIRComm 1198

1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 18 April 2005, by Yin Zhu Jiang (the applicant), and named the respondent employer as SASC Pty Limited. It appeared that the respondent employer may also trade under the names "Oliver Shirts" and "oliver clothing". The identification of the respondent employer may be more accurately made by reference to the ABN:74092075217 (the employer).

2 Proceedings in this matter commenced on 11 May 2005. The applicant was represented by a solicitor, Mr P Vouroudis, and the employer's General Manager, Mr Nuri Hassim appeared for the employer. The conciliation proceedings on 11 May appeared to be successful, and following a short adjournment the Parties reported that the matter and been settled by way of agreement.

3 The Commission adjourned proceedings to allow the Parties to perform the operative terms of the agreement to settle the matter. The Commission marked the file as; "Settled, subject to the filing of a Notice of Discontinuance on or before 19 August 2005". The date of 19 August 2005 was determined as being after the date upon which it was anticipated that the performance of the terms of the agreement would be concluded.

4 The Commission received correspondence dated 15 August 2005, from the solicitors for the applicant, Photios Vouroudis & Co. This correspondence advised that the matter remained unresolved and requested that the Commission arrange for further proceedings. The matter was Mentioned on 1 September 2005, when Mr Vouroudis continued his appearance for the applicant and Mr Hassim again appeared for the employer.

5 On 1 September Mr Vouroudis advised the Commission that the agreement to settle the matter had been reduced to writing and a "Terms Of Settlement" document had been duly signed by both Parties on 11 May 2005. However the employer had not complied with the "Terms Of Settlement" document and, significantly, had not made any payment of monies to the applicant as was envisaged by the "Terms Of Settlement" agreement.

6 Mr Hassim advised the Commission that the employer felt that it was not bound by the terms of the agreement to settle the matter. Mr Hassim complained about the alleged circumstances that were involved at the time that the "Terms Of Settlement" document was signed. Mr Hassim confirmed that the employer had signed the "Terms Of Settlement" document but would not honour the terms that had been agreed at the time. Mr Hassim further confirmed that the employer recanted from any agreement made on 11 May 2005 to settle the applicant's claim for unfair dismissal.

7 The Commission adjourned proceedings as Mr Vouroudis sought to obtain instructions as to whether the applicant might seek to enforce the "Terms Of Settlement" document as a binding agreement between the Parties, or alternatively, release the employer from any agreement made on 11 May 2005, and continue the proceedings in respect to the claim for unfair dismissal. Further proceedings by way of Directions were fixed for 11 November 2005.

8 On 7 November 2005 the Commission received correspondence from John F Law & Associates attaching a Notice of Appearance on behalf of the respondent employer together with a Certificate made under section 90A of the Act.

9 On 11 November 2005, Mr E Smith of counsel, appeared for the applicant and Mr J Law, agent, appeared for the employer. The applicant had not clearly determined what, if any, further proceedings were sought in the matter. The proceedings were adjourned and the Parties were requested to confer regarding the matter generally. In addition, the applicant was directed to convey in writing a position as to whether it would seek to have the "Terms Of Settlement" agreement enforced or take some alternative course in respect to the claim for unfair dismissal.

10 The Commission received correspondence dated 17 November 2005, from the solicitors for the applicant, Photios Vouroudis & Co. This correspondence requested that the Commission make an Order under section 174 (b) of the Act, in the terms of the "Terms Of Settlement" document signed on 11 May 2005. In support of this request, the applicant filed an affidavit of Photios Vouroudis dated 16 November 2005, to which was attached a copy of the "Terms Of Settlement" document dated 11 May 2005.

11 The Commission listed the matter for Directions proceedings at 9:15 am on 22 November 2005. The Commission received correspondence dated 21 November 2005, from John F Law & Associates the agents for the respondent employer. This correspondence relevantly stated as follows:

"Our client has advised that when the matter is listed for Directions tomorrow morning concerning the Applicant's Application under Section 174 (b), that they will not oppose the Application, however they intend to defend the matter should any application be filed in a Local Court on the basis that they were harassed by the Applicant's solicitor into signing a Terms of Settlement."

12 Consequently the Commission is prepared to conclude proceedings in this matter by making an Order under section 174 (b) of the Act.

ORDER

The Commission makes this Order on the agreed terms for settlement as contained in the "Terms Of Settlement" document dated 11 May 2005, a copy of which is attached to that the affidavit of Photios Vouroudis dated 16 November 2005, and filed in this matter on 18 November 2005.

Specifically, the Commission Orders that the respondent employer, SASC Pty Limited (ABN:74092075217), pay to the applicant the amount of Four Thousand Dollars ($4,000.00) as follows:

a. $1,000.00 by no later than 11 June 2005

b. $1,500.00 by no later than 11 July 2005

c. $1,500.00 by no later than 11 August 2005

By the Commission

This day of November 2005:

I W CAMBRIDGE

COMMISSIONER

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LAST UPDATED: 22/11/2005