Amedeo Romano v DP World Melbourne Ltd - [2023] FWC 394

[2023] FWC 394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amedeo Romano
v

DP World Melbourne Ltd

(U2022/11300)

DEPUTY PRESIDENT BELL

MELBOURNE, 21 FEBRUARY 2023

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A and s.587.

On 27 November 2022, Mr Romano made an application for an unfair dismissal remedy against DP World Melbourne Pty Ltd (Respondent). It was not in dispute that Mr Romano was dismissed by the Respondent on 7 November 2022. What was in dispute was whether the dismissal was unfair.

The issue I must consider for this decision is whether or not the matter was resolved by way of a binding settlement agreement reached at a conference held before me on 6 February 2023. The Respondent contends that a binding settlement agreement was reached and, therefore, the matter ought be dismissed pursuant to either of s.399A or 587 of the Fair Work Act 2009 (Act).

Factual background

On 27 January 2023, the matter was allocated to me. On 31 January 2023, I issued directions to the parties setting down a timetable for the filing of evidence, as well as listing the matter for a mention hearing and possible conference at 11:00am, Monday, 6 February 2023.

On 6 February 2023, the mention hearing before me took place by Microsoft Teams. Toward the end of that hearing, I inquired of the parties as to whether there was any prospect that the matter might resolve. I observed to the parties that normally before a matter is allocated to a member of the Commission, there has usually been a chance for the parties to try and talk and reach some form of settlement but that had not yet occurred in this matter.

Mr Romano confirmed my understanding and indicated that that was what he was “hoping for” I then asked if the Respondent was happy to see what we might be able to do to resolve the matter that day if that was an option, and the Respondent indicated they had been open the whole time for that opportunity. After a brief discussion where I confirmed with the parties that any private conference would be on the basis that I would continue to hear the matter if it did not resolve, we moved into private conference.

Those present at the mention hearing and through the conference were Mr Romano, for himself, and Ms Kathryn Winter (Employee & Industrial Relations Manager) and Mr Chris Harris (Human Resources Manager) on behalf of the Respondent.

I return to the detail of the conference below but, for present purposes, there was discussion about settlement that included the Respondent indicating it would prepare a written deed. Later on 6 February 2023, the Respondent sent Mr Romano an email containing a deed.

On 7 February 2023, Mr Romano contacted my chambers advising that he has not signed the proposed deed and wishes to proceed with his unfair dismissal application. Through chambers, I corresponded with the parties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Amedeo Romano v DP World Melbourne Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 394
Decision Date: 21 FEBRUARY 2023

CaseChat Overview and Summary

Amedeo Romano has applied to the Fair Work Commission for a remedy in respect of his dismissal by DP World Melbourne Ltd. The primary dispute before the Deputy President was whether the dismissal was unfair. The Deputy President found that the matter was settled by a binding agreement reached on 6 February 2023. Accordingly, the application for a remedy must be dismissed. The Deputy President found that the parties intended to be immediately bound by an oral agreement reached at a conference before the Deputy President on 6 February 2023. That agreement provided for a settlement payment, a statement of service, and terms of confidentiality and non-disparagement. The Deputy President found that the subsequent preparation of a written deed was not a condition precedent to the agreement being binding and that Mr Romano's objections to some of the terms of the deed did not mean that the parties had not reached an agreement. The Deputy President found that the settlement deed was "without prejudice" and that the parties must keep the terms of the settlement confidential. Mr Romano's application is dismissed and an order will be separately issued.

Orders