Abhilash Tripathi v Tricor Services (Australia) Pty Ltd
[2024] FWCFB 371
•16 SEPTEMBER 2024
| [2024] FWCFB 371 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Abhilash Tripathi
v
Tricor Services (Australia) Pty Ltd
(C2024/3383)
| JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT DOBSON | SYDNEY, 16 SEPTEMBER 2024 |
Appeal against decision [2024] FWC 1173 of Commissioner Connolly at Melbourne on 7 May 2024 in matter number C2023/8047 – utility of appeal where settlement reached – permission to appeal refused.
Abhilash Tripathi has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission to appeal is required, against a decision[1] and order[2] of Commissioner Connolly issued on 7 May 2024 dismissing Mr Tripathi’s general protections dismissal application lodged pursuant to s 365 of the FW Act. The respondent in this matter is Tricor Services (Australia) Pty Ltd trading as Vistra (Tricor).
Mr Tripathi was dismissed by Tricor on 7 December 2023. On 20 December 2023, he lodged an application pursuant to s 365 alleging that he was dismissed in contravention of the general protections provisions in Part 3-1 of the FW Act. On 6 March 2024, the Commissioner conducted a private conference for the purposes of dealing with the dispute. At the conclusion of the conference, the Commissioner recorded an agreement reached in settlement of the dispute. On 7 March 2024, Mr Tripathi wrote to the Commissioner’s chambers requesting that he be permitted to ‘opt-out’ of the settlement and that the Commissioner issue a certificate pursuant to s 368(3)(a) of the FW Act. Tricor opposed the issuing of the certificate on the basis that a binding settlement agreement had been reached.
The Commissioner conducted a hearing to resolve the question of whether a binding settlement had been reached. The Commissioner found the parties had reached a binding settlement agreement in resolution of Mr Tripathi’s general protections application and dismissed Mr Tripathi’s s 365 application. He did so pursuant to s 587(1) of the FW Act on the basis that the dispute had been settled and the Commission no longer had jurisdiction to deal with the matter. The Commissioner noted that in the alternative he would have ordered the matter be dismissed using the Commission’s implied power to decline to act on an application where it fails for want of jurisdiction.
In his appeal, Mr Tripathi wishes to contend that the Commissioner erred in finding that there was a binding settlement. His grounds of appeal allege various errors of fact, incorrect application of principle, and bias on behalf of the Commissioner.
Tricor sought permission under s 596 of the FW Act to be represented by counsel on the appeal. We were satisfied that the requirement in s 596(2)(a) of the FW Act was met as we would be assisted by counsel in dealing with the appeal and that we should exercise our discretion in favour of the grant of legal representation. Mr Tripathi represented himself.
Application for a confidentiality order
On 15 July 2024, following the hearing of the appeal on 10 July 2024, Mr Tripathi emailed the Presiding member’s chambers seeking a confidentiality order concerning his identity as the appellant or, in the alternative, an order anonymising the parties’ names in the appeal decision. He sought such an order for the purpose of improving his ability to secure future employment following the termination of his employment at Tricor.
The power to make such an order is found in ss 593(3) and 594(1) of the FW Act. The power is discretionary in nature. The principle of open justice is usually the paramount consideration in determining whether an order of the type sought by Mr Tripathi should be made.[3] This is not displaced by an apparently asserted link between these proceedings and Mr Tripathi’s future employment prospects. The application for a confidentiality or anonymisation order is therefore rejected.
Factual background
The background to the matter is set out in the Commissioner’s decision. Mr Tripathi commenced employment with Tricor on 7 June 2023 as a ‘Director, Business Development’. He was notified in writing on 7 December 2023 that his employment was terminated effective immediately. Mr Tripathi filed a s 365 application with the Commission on 20 December 2023. On 23 January 2024, a Commission staff conciliator conducted a telephone conciliation which did not result in a settlement of the dispute, and the matter was placed on hold to allow the parties to consider their positions.
On 23 February 2024, the matter was allocated to the Commissioner. Not being satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful, the Commissioner listed the matter for a further conference. On 6 March 2024, a conference was conducted pursuant to s 368 of the FW Act. Mr Tripathi represented himself at the conference and Tricor, with the Commissioner’s permission, was represented by a solicitor. At the conference, the parties engaged in settlement discussions with the assistance of the Commissioner. Following those discussions, an understanding was reached that Tricor would pay an agreed sum in settlement of Mr Tripathi’s general protections claims. Mr Tripathi was to retain the ability to pursue an alleged underpayment claim under his contract of employment. A draft settlement agreement was to be prepared to reflect the settlement of the application.
The Commissioner left the conference at that point and the Commissioner’s chambers assisted in the drafting of the settlement agreement. A draft was emailed at 11:58 am on 6 March 2024 for both parties to review. That email included the following:
Please find attached, Terms of Settlement.
If acceptable, please ensure the Deed [sic] is appropriately signed, witnessed and returned to the respective parties and Chambers within 24 hours.
At 12:26 pm, the Commissioner’s chambers provided a further email to both parties which included the final settlement agreement. The email included the following:
Please see attached, FINAL Terms of Settlement with amendments as discussed.
At 12:35 pm, the Commissioner rejoined the conference and read the terms of settlement to the parties. After he did so the following exchange took place:
Commissioner: Mr Tripathi, as the Applicant, do you agree to these terms of settlement?
Applicant: Yes, I agree to these terms of settlement.
Commissioner: Ms Mittal, on behalf of the Respondent, do you agree to these terms?
Mrs Mittal: Yes, I do agree.
The conference concluded with the Commissioner saying:
Thank you for your time and assistance this morning. That concludes the conference and of course the settlement between the parties, all that’s required is for the deed [sic] to be executed and its terms to be complied with as agreed.
At 2:24 pm on 6 March 2024, Tricor sent an email to the Commissioner’s chambers attaching a signed copy of the settlement agreement. A copy was forwarded to Mr Tripathi.
The following day Mr Tripathi sent an email to the Commissioner’s chambers stating he would like to ‘opt-out’ of the settlement reached and requesting a certificate be issued. In his email, Mr Tripathi explained his reason for doing so was as follows:
Upon closer review of the terms, I have discovered a major conflict with my alternative underpayment of salary claim which has the potential to prevent me from seeking the rightful justice for that claim purpose.
I apologise for the inconvenience and would request Commissioner Connolly to grant me the Certificate to pursue the General Protections claim, as per my earlier request last week.
On receipt of this correspondence, the Commissioner formed the preliminary view that a binding settlement agreement had been reached during the conference on 6 March 2024 and that it was open to the Commission to dismiss the application in accordance with the High Court decision in Masters v Cameron.[4] The Commissioner sought the views of the parties on whether a binding settlement agreement had been reached and provided them with copies of relevant authorities.
In an email sent on 8 March 2024, Mr Tripathi again stated that he sought to opt-out of the agreement reached on the basis that the first email sent by the Commission on 6 March 2024 included the words ‘if acceptable, please ensure the Deed is appropriately signed, witnessed and returned to the respective parties and Chambers within 24 hours.’ He contended that he read and understood that email as permitting him to review the terms for 24 hours and if he found them acceptable, he could then sign them. Having reconsidered the terms, he decided not to sign the agreement and understood that this would lead to the Commissioner issuing a certificate under s 368(3) to the effect that the Commission was satisfied that all reasonable steps to resolve the dispute had been or were likely to be unsuccessful. Mr Tripathi made no mention of the subsequent discussions and communications with the Commission that led to changes to the initial draft of the settlement agreement, nor was mention made of Mr Tripathi confirming in conference that the terms in the amended settlement agreement were accepted.
Tricor responded to the Commissioner that in its view a binding settlement had been reached and it objected to a certificate being issued. The Commissioner listed the matter for hearing to consider the issue of whether a binding agreement had been reached settling the dispute.
The decision under appeal
The Commissioner’s decision sets out the background to the matter,[5] identifies the question to be determined,[6] sets out the relevant statutory provisions which were said to be s 368(3) and s 587, describes the parties’ submissions,[7] considers the arguments, and concludes that a binding settlement was reached.
Mr Tripathi’s submissions before the Commissioner were that the first email from the Commission provided that he only need sign the settlement agreement if acceptable and within 24 hours, and asserted his belief that those words provided him an opportunity to consider the settlement and opt-out if he considered the terms unacceptable. He submitted that in the discussions following that email being sent, giving rise to the subsequent version of the settlement agreement, and in giving his express assent to the terms of that agreement in the conference, he did not intend to forego the opportunity to review the agreement over a 24-hour period. Rather, Mr Tripathi submitted that he would have signed the agreement only if it was acceptable.
Tricor submitted that the facts of the matter fell within the second class of the three classes of cases described in Masters v Cameron,[8] making it a binding settlement agreement. Tricor submitted that a binding agreement was reached before the first email was sent and that the 24-hour period was not an opportunity to opt-out of that agreement but was only available to consider whether the written terms reflected that agreement. It also submitted that, by the conclusion of the conference, it was clear that the terms of the amended agreement accurately reflected the settlement with no further terms to be negotiated. Tricor also submitted that a certificate that the parties were unable to reach agreement could not issue in circumstances where the parties were in fact able to reach agreement, and so the Commission could not be satisfied that the requirement in s 368(3) had been met.
Following his consideration of these arguments, the Commissioner found that Mr Tripathi had at the conclusion of the conference on 6 March 2024 clearly and unambiguously accepted the terms of agreement and a binding agreement had been reached. The Commissioner then dismissed Mr Tripathi’s application, stating:
[60] As a result, I have determined to dismiss Mr Tripathi’s general protections application pursuant to s.587(1) of the Act on the basis that the dispute has been extinguished by a settlement agreement after the application was made. Consequently, the Commission no longer possesses the jurisdiction to deal with this matter any further.
[61] In the alternative, I would order the dismissal of Mr Tripathi’s application using the implied power for the Commission to decline to act on an application where it fails for want of jurisdiction.
An order issued separately dismissing Mr Tripathi’s s 365 application pursuant to s 587(1) of the Act.
Legislative framework
Mr Tripathi’s application was made pursuant to s 365 of the FW Act. The Commissioner was required to deal with it under s 368. Sections 365 and 368 of the FW Act are contained in Subdivision A of Division 8 of Part 3-1. They provide:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
…368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.
The Commissioner dismissed the application pursuant to s 587. It provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Mr Tripathi’s appeal
Mr Tripathi’s notice of appeal lists twelve grounds. Together they amounted to three complaints. First, that the Commissioner did not take into account relevant facts; second, that he applied wrong principles; and, third, that he was not objective. Mr Tripathi’s submissions made the same complaints. Mr Tripathi also asserts that the 6 March 2024 conference should not have occurred at all, as neither party requested it. He contends that a certificate should have issued prior to the second conference, following the unsuccessful conference in January 2024. As to the outcome of the March 2024 conference, Mr Tripathi repeats his argument at first instance that the first email sent from the Commissioner’s chambers stated the settlement agreement should only be signed if acceptable and within 24 hours. He also contends that the conference on 6 March 2024 was held on a without prejudice basis and he should accordingly not be bound by the outcome.
On the question of permission to appeal, Mr Tripathi contends an injustice arose because without the certificate under s 368(3)(a) he is denied the right to progress his claim to the court due to the operation of s 370. He further contends that parties should have confidence in the Commission’s processes and that it is in the public interest that those processes are improved to avoid a repeat of the treatment he received in his matter.
Appeal principles
Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified considerations that might attract the public interest:
… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…[10]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[11]
Consideration – permission to appeal
Mr Tripathi’s appeal fails to establish an arguable case of appealable error. Mr Tripathi’s contention that the Commissioner erred in conducting the 6 March 2024 conference is unsustainable. First, s 368 requires the Commission to be satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. It was not merely open to the Commissioner to conduct a conference to satisfy himself that the dispute over Mr Tripathi’s dismissal was unlikely to be resolved but a requirement under s 368 for him to do so. He did not need the parties’ consent to conduct a conference. Second, Mr Tripathi participated in the second conference. It is not open for him to complain on appeal that the conference should not have occurred when he made no such complaint to the Commissioner, and then attended and participated in the conference.
We also see no arguable case of factual or legal error in the Commissioner’s decision. The facts were largely uncontested. The relevant facts going to the question of whether a binding settlement agreement had been reached at the conference on 6 March 2024 were contained in the contemporaneous email correspondence and the transcript of the conclusion of the conference. Mr Tripathi’s appeal simply disagrees with the Commissioner’s conclusions. For our part we agree with the Commissioner’s conclusion that Mr Tripathi entered into a binding settlement agreement. So much is clear from the transcript at the conclusion of the conference.
There is also no arguable case of error in the way the Commissioner applied the relevant authorities. Those authorities were set out in the Commissioner’s decision at [47] in the extract from the Full Bench decision in Suberg Singh v Sydney Trains.[12] The Commissioner identified the correct test, which is whether Mr Tripathi’s acceptance of the terms of settlement read out on transcript at the conclusion of the conference on 6 March 2024 would convey to a reasonable person a clear and definite decision by Mr Tripathi to be bound by the terms of the settlement leaving nothing further to be negotiated. The Commissioner applied that test and found that it was satisfied. The Commissioner’s conclusion was plainly the correct one.
The submissions that the Commissioner was not ‘objective’ are also without foundation. Mr Tripathi has not established that the Commissioner acted in any way other than an objective decision maker in determining the issues before him. So much is clear on the face of the decision and the communications between the parties set out in the Commissioner’s decision. The conference on 6 March 2024 was conducted on a without prejudice basis. Such conferences are required to be held in private pursuant to s 368(2) of the FW Act. However, once an agreement is reached to settle a claim in such a conference, the parties can be held to that agreement in the manner described in the Commissioner’s decision.
As Tricor has identified, no appealable error in the Commissioner’s decision exists and we see no other basis to exercise our discretion to grant permission to appeal. Permission to appeal is therefore denied.
We note that, in disposing of Mr Tripathi’s application, the Commissioner made an order under s 587(1) to dismiss the application. He did so on the basis that the dispute between Mr Tripathi and Tricor had been extinguished by the settlement agreement, resulting in the Commission no longer having jurisdiction to deal with the matter. This was, in effect, to say that the application no longer had reasonable prospects of success. However, s 587(2) of the FW Act provides that the Commission may not dismiss an application under s 365 on the ground that it has no reasonable prospects of success. Section 587(2) prevented the Commissioner from disposing of the matter by dismissing it.
We consider the better approach to disposing of s 365 matters in circumstances where settlement is reached is the approach taken by the Full Bench in MacFarlane v AECOM Australia Pty Ltd.[13] In that case the Full Bench, noting that the dispute had been settled, recorded that it was not satisfied that all reasonable attempts to resolve the dispute under s 368 have been, or are likely to be, unsuccessful and declined to issue a certificate under s 386(3)(a). However, this makes no substantive difference to the disposition of Mr Tripathi’s case. There was no basis by which a s 386(3)(a) certificate could have been issued. No purpose would be served by granting permission to appeal so as to quash the Commissioner’s order in those circumstances.
For the foregoing reasons, permission to appeal is refused.
PRESIDENT
Appearances:
A Tripathi, the appellant, in person.
G Morgan-Cocks, counsel, instructed by Bird & Bird, for Tricor Services (Australia) Pty Ltd.
Hearing details:
2024.
Sydney:
10 July 2024.
[1] [2024] FWC 1173.
[2] PR774558.
[3] Ra'id Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [46], citing Amie Mac v Bank of Queensland Limited and Ors [2015] FWC 774 at [6].
[4] [1954] HCA 72, 91 CLR 353.
[5] [2024] FWC 1173 at [1]–[24].
[6] Ibid at [25]–[26].
[7] Ibid at [32]–[46].
[8] The High Court (Dixon CJ, McTiernan and Kitto JJ) characterised cases of the second class as ‘[cases] in which 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’: Masters v Cameron at 360. In cases of the second class, there is a contract binding the parties to bring the formal contract into existence and carry it into execution: Masters v Cameron at 360.
[9] O’Sullivan v Farrer [1989] HCA 61,168 CLR 210, applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]–[46].
[10] [2010] FWAFB 5343, 197 IR 266 at [27].
[11] Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30].
[12] [2017] FWCFB 4562.
[13] [2021] FWCFB 1343.
Printed by authority of the Commonwealth Government Printer
<PR779235>
9
0