Allyson Lombardo v The West Australian Newspaper

[2015] FWC 8063

[2015] FWC 8063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allyson Lombardo
v
The West Australian Newspaper
(U2015/1172)

DEPUTY PRESIDENT GOOLEY PERTH, 24 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Allyson Lombardo alleged the termination of her employment by The Western Australian Newspaper was unfair.

[2] The application was referred to conciliation on 13 April 2015. On that day, Ms Lombardo’s representative, Mr Amnon Kelemen, filed a notice that he was ceasing to act for Ms Lombardo. The conciliation proceeded but the matter did not settle.

[3] On 15 April 2015, Ms Lombardo sent the Conciliator an email in which she asked her to confirm the offer made by The Western Australian and asked when she needed to respond by. The Conciliator advised her of the offer and advised that she needed to respond by close of business AWST on 16 April 2015. On the same day, Ms Lombardo sent to Ms Briony Pole, The Western Australian’s representative, an email stating:

“I need to see what exactly the details are of the document “Statement of Service and a Deed of Settlement” as mentioned by the Conciliator below, before I agree to anything. Please send it to me by close of business today.”

[4] Ms Pole replied on the same day, saying:

“The statement of service would include the following information:

• the date on which you commenced employment with Western Australian Publishers;



• the date on which your employment came to an end;



• your position title; and



• the general duties you performed as part of that role.

If there is other information you would like included (or not included) in the Statement of Service, please let me know and I will take instructions from my client in that regard.

I understand the deed of settlement will be prepared by the Fair Work Commission, as requested by you. I have seen the Fair Work Commission’s template deed of settlement previously and I understand it includes the following standard terms:

• both parties will release the other from all claims they may have against the other arising from your employment, to the extent permissible by law;



• both parties will keep the circumstances surrounding the ending of your employment, and the terms of the settlement reached, confidential; and



• both parties will agree not to make disparaging or negative comments about the other going forward.”

[5] That offer remained open until 5.00pm on 16 April 2015. Ms Pole invited Ms Lombardo to contact her if she required any further clarification of the terms of the offer.

[6] On 16 April 2015, Ms Lombardo sent an email to Ms Pole saying: “I accept the offer.”

[7] On 17 April 2015, a representative of The Western Australian sent an email to the Conciliator enclosing the emails and asking the Conciliator to prepare the deed of settlement.

[8] On 17 April 2015, the Conciliator sent an email to the parties noting that the parties had reached a settlement agreement and attached the terms of settlement.

[9] On 17 April 2015, Ms Lombardo sent an email as follows:

“Document has been received and I will now have it checked by a qualified and competent Employment Law lawyer to verify and approve it’s content and agreement as being acceptable, before signing and returning to any party.”

[10] On 19 August 2015, Ms Lombardo’s legal representative sent an email to the Commission advising that “a successful settlement was not reached with the Respondent, meaning that the matter remains unresolved. No terms of settlement have been agreed upon nor signed between the parties, nor was any remedial consideration exchanged between them.” He requested the matter be listed for hearing or telephone directions.

[11] On 20 August 2015, Ms Pole advised the Commission that it was The Western Australian’s contention that there was a binding settlement and Ms Lombardo’s unfair dismissal claim had been extinguished. It said the Commission did not have the jurisdiction to hear the claim.

[12] On 26 August 2015, the Commission sent Ms Lombardo a letter seeking advice as to whether a binding agreement had been reached or only an in-principle settlement.

[13] On 28 August 2015, Ms Lombardo’s representative advised that only an in-principle agreement had been reached and it was not binding. Ms Lombardo wanted her application to be heard and determined.

[14] On 9 and 12 October 2015, the Commission staff contacted The Western Australian and asked them to provide evidence that the monies payable under the terms of settlement had been paid. On 15 October 2015, payment advice was received from The Western Australian which recorded a payment being made to Ms Lombardo on 14 October 2015.

[15] On 20 October 2015, Ms Lombardo’s representative sent an email to the Commission advising that:

“We understand that our client has received an unsolicited payment from the Respondent. This payment was not made in consideration of any terms of settlement being signed by the Applicant beforehand, and has only been made after the Applicant indicated her preference for the matter to proceed further.

Accordingly, we are instructed that client still wishes to request that her matter be progressed (either by conference or hearing at the Commission’s discretion).”

[16] On 26 October 2015, I caused an email to be sent to Ms Lombardo. In that email, I advised that I was considering whether I should dismiss her application under section 587 of the Fair Work Act 2009 (the Act) because it had no reasonable prospects of success. I referred the parties to the decision of the Full Bench in Curtis v Darwin City Council 1 which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman2 which is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application, then the application has no reasonable prospects of success and may be dismissed.

[17] I provided the parties with an opportunity to file material in relation to my proposal that I should dismiss Ms Lombardo’s application.

The evidence and submissions

[18] Ms Lombardo gave evidence that she understood the Respondent’s settlement offer to be subject to a deed of release being agreed to and signed accordingly. It was her evidence that nothing was said by the Respondent or the Commission that a settlement could take place without a deed of release being signed. 3

[19] After indicating her acceptance of the offer, Ms Lombardo and Ms Pole exchanged emails about the terms of the draft Statement of Service and about the Respondent’s Employee Code of Conduct policy.

[20] By email dated 19 April 2015, Ms Lombardo asked whether the Statement of Service covered her seven years of employment or only her time at Creative Services W.A. Publishers and if the latter, under who’s management will be referred to. Ms Barker advised her that it will cover her full employment service with the company and will refer to her most recent reporting lines through to the studio manager.

[21] On 21 April 2015, Ms Lombardo sent an email to the Conciliator, but did not provide a copy to The Western Australian. She said:

“what if the conditions and terms in this agreement are not satisfactory for me?”

[22] The Conciliator replied on the same day, and again this was not copied to The Western Australian, saying as follows:

“These are standard terms of settlement drawn up by the Commission, as you requested. If any of the terms are unacceptable to you, you can negotiate these with the other side directly. Alternatively, you can request that your matter be referred to a hearing before a Commissioner.”

[23] On 28 April 2015, Ms Lombardo sent an email to Ms Pole and the Conciliator and others, saying “your response to my question in regards to 3.4 of the agreement provided, is not satisfactory without further clarification of what you intend to provide. Until such is adequately shown to me, I can not [sic] sign the agreement. I look forward to your further negotiation.” 4

[24] On 29 April 2015, Ms Pole sent an email attaching a draft Statement of Service and requesting Ms Lombardo sign the terms of settlement so that payment could be arranged.

[25] On 4 May 2015, Ms Lombardo sought a copy of the Employee Code of Conduct referred to in the Form F3 filed by The Western Australian.

[26] On 4 May 2015, Ms Pole sent an email to Ms Lombardo noting that her unfair dismissal claim had been resolved by way of settlement and asked why she requested a copy of the Employee Code of Conduct.

[27] On 5 May 2015, Ms Lombardo explained her reasons for seeking a copy of the Code of Conduct. Those reasons are not relevant for this decision.

[28] On 6 May 2015, Ms Pole provided a copy of the Employee Code of Conduct and noted that if Ms Lombardo had had any questions about the documents referred to in the employer’s Form F3, they should have been raised prior to or at the conciliation conference. Ms Pole again asked Ms Lombardo to sign the terms of settlement so that she could arrange for the settlement monies to be paid. 5

Submissions

[29] Ms Lombardo relied on the email from the conciliator of 21 April 2015 to support her contention that if the terms of the deed were unacceptable, she could have the matter referred to a hearing before a Commissioner. She took this to mean that she could progress her unfair dismissal matter further if she did not accept or sign the second deed and relied upon this information accordingly.

[30] Ms Lombardo also relied on the advice of The Western Australian’s solicitors that they would pay the settlement money upon receipt of the signed deed of settlement. She submitted that she had never received a final satisfactory Statement of Service. Further, she could not understand why the settlement sum first offered to her on 23 February 2015 is different to the settlement sum proposed in the second deed.

[31] Ms Lombardo submitted that there had been no accord and satisfaction reached between the parties and that Ms Lombardo persistently raised issues with the Respondent’s solicitors about the Statement of Service and the Employee Code of Conduct. Further, it was submitted that Ms Lombardo is confused as to why the first deed and second deed are different. She further relied on the advice provided by the Conciliator 21 April 2015.

[32] Further, it was submitted that at 19 October 2015, The Western Australian did not comply with any of the operative terms of settlement until after Ms Lombardo advised that she wished to progress the matter.

[33] Ms Lombardo submitted that there was not a binding agreement and that the parties only intended to be bound once a signed agreement had been made. It was submitted that this was an example of the third class of agreement as discussed in Masters v Cameron. 6

[34] Ms Barker, the General Manager Human Resources for The Western Australian, gave evidence that she attended the conciliation conference. At the end of the conference, The Western Australian made an offer to Ms Lombardo to settle the matter which was open to close of business on 16 April 2015. 7

[35] It was her evidence that Ms Lombardo required the terms of settlement to be drawn up by the Commission rather than The Western Australian and that was agreed. 8 Ms Barker received a copy of Ms Lombardo’s email of 16 April 2015 accepting the offer.

[36] On 14 October 2015, Ms Barker authorised the payment of monies payable under the terms of settlement.

[37] The Western Australian submitted that there was an enforceable contract despite the fact that it was not signed. It submitted that there was no evidence that the terms of settlement were in dispute. It submitted the final agreement was intended to be immediately binding with an intention to have the terms restated in a fuller written form with precise terms but not different in effect. Alternatively, The Western Australian submitted that the agreement reached on 16 April 2015 was an agreement of the second class referred to in Masters v Cameron, that is “the parties have completely agreed upon all the terms…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.” 9

[38] It was submitted the terms of settlement are unremarkable and that the agreement reached on 16 April 2015 was binding and enforceable and is a complete answer to the application.

Consideration

[39] In Masters v Cameron, 10 the High Court held that 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. The three classes are:

1. 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.

2. 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.

3. 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.

[40] I accept the submissions of The Western Australian. On 16 April 2015, Ms Lombardo unconditionally accepted the offer. She did not put any limitation on that acceptance. She had earlier advised that she would not agree unless she was provided with a copy of the terms of settlement and the Statement of Service. When told by Ms Pole the parameters of the terms of settlement and the Statement of Service, she unconditionally accepted the offer. She did not prior to acceptance advise The Western Australian that her acceptance was conditional on her getting legal advice nor was it conditional on her receiving an agreed Statement of Service.

[41] Ms Lombardo submitted that she was not told that the settlement could take place without a signed deed of release. 11

[42] There is no evidence that Ms Lombardo was told that there was no agreement until she signed the terms of settlement. That submission is inconsistent with the offer only remaining open until a particular time.

[43] Further Ms Lombardo had originally made her acceptance of the offer conditional upon her receiving a copy of the terms of settlement and Statement of Service. Having received information about the content of those documents, she resiled from that position and accepted the offer.

[44] It was put that Ms Lombardo lacked the capacity to make the agreement. It was put that she was unrepresented at the conciliation because her representative pulled out at the last minute. This is true, but it is the uncontested evidence of Ms Barker that Ms Lombardo was asked if she wished to have an adjournment and she declined. In any event, agreement was not reached at conciliation. It is unclear how it can be put that Ms Lombardo was incapable of telling The Western Australian on 16 April 2015 that she would not agree until she had sought legal advice or the terms of the Statement of Service were to her satisfaction when she was able to do so in relation to the Statement of Service on 15 April 2015 and in relation to legal advice on 17 April 2015. I do not accept that Ms Lombardo was confused about the offer given the differences in the amount to be paid being a lesser amount that was in the first deed she was offered. It is clear that Ms Lombardo knew the amount the Western Australian was prepared to offer her to settle the claim. Why it was a lesser amount is not relevant because she accepted the amount offered.

[45] Given the offer was only open until 16 April 2015, Ms Lombardo decided to accept it. I do not accept that she did not have the capacity to make the decision. Ms Lombardo’s reliance on what happened after the 16 April 2015 does not assist her as by that time she had already accepted the offer. By that time negotiations were over.

[46] I am satisfied that the contract was either the first or second type discussed in Masters v Cameron and as a consequence, I find that a binding agreement was reached on 16 April 2015.

[47] I do not accept the submission that the failure of the Western Australian to pay the monies in accordance with the agreement invalidates the agreement. On 17 April 2015 Ms Lombardo had advised that she would not sign the terms until it had been checked. It was not surprising that the Western Australian did not make the payment at this time. Ms Lombardo could have taken steps to enforce the terms of the agreement.

[48] If there is a binding agreement between the parties, the Commission has the power to dismiss an application as it has no reasonable prospects of success. 12 However, the decision to dismiss is discretionary and while Ms Lombardo has received the monies payable under the terms of settlement, she had not received the Statement of Service. I will therefore not dismiss the matter at this time. However, if within seven days of this decision The Western Australian provides evidence that it has provided Ms Lombardo with a Statement of Service, I will dismiss Ms Lombardo’s application.

DEPUTY PRESIDENT

Appearances:

S Banovich for the Applicant.

B Pole for the Respondent.

Hearing details:

2015.

Telephone hearing:

November 13.

 1   [2012] FWAFB 8021.

 2 [2011] FCA 975.

 3 Exhibit A1 at [11].

 4   Ibid at Attachment 2.

 5   Ibid.

 6 (1954) 91 CLR 353.

 7   Exhibit R1 at [13]-[14].

 8 Ibid at [15].

 9 (1954) 91 CLR 360.

 10   Ibid 360-361.

 11   [2012] FWAFB 8021.

 12   Australian Postal Corporation v Gorman [2011] FCA 975.

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