Amy Wilson v Wilson Pateras
[2021] FWCFB 6064
•9 DECEMBER 2021
| [2021] FWCFB 6064 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Amy Wilson
v
Wilson Pateras
(C2021/7070)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 9 DECEMBER 2021 |
Permission to appeal and appeal sought in relation to decision [2021] FWC 5988 of Commissioner Mirabella at Melbourne on 29 September 2021 in U2021/4699.
[1] Ms Amy Wilson has applied for permission to appeal and appeals a decision of Commissioner Mirabella issued on 29 September 2021 1 (Decision) in which the Commissioner found that Ms Wilson had entered into a binding settlement agreement in relation to her unfair dismissal claim. The Commissioner dismissed Ms Wilson’s application pursuant to s 587(1)(c) of the Fair Work Act 2009 (Act) on the basis that it had no reasonable prospects of success.
[2] Ms Wilson was dismissed from her employment with Wilson Pateras (the Respondent) on 28 May 2021and filed an unfair dismissal application on 31 May 2021. The Respondent objected to the application on the basis that Ms Wilson’s application was frivolous and had no reasonable prospects of success because she had signed a Deed of Release (the Deed) and submitted it should be dismissed pursuant to s.587 of the Act. As the matter did not resolve at conciliation, it was allocated to the Commissioner for further case management. The Commissioner issued directions and conducted a determinative conference on 5 August 2021.
[3] The Commissioner ultimately found that:
“[18] After considering all of the evidence, I am satisfied that the parties entered into a binding settlement agreement through the execution of the Deed, binding each party to carry out each of its agreed terms to execution. It is a complete answer to Ms Wilson’s unfair dismissal claim.
…
[23] As I am satisfied that, in the circumstances before me, there is a binding agreement between the parties which has extinguished the application, I consider it appropriate and open to me to exercise my power under s. 587(1)(c) of the Act to dismiss the application for an unfair dismissal remedy lodged by Ms Wilson on the basis that it has no reasonable prospects of success. An order to this effect will be issued with this Decision.”
Background
[4] Following a meeting on 27 May 2021, the Respondent, through its General Counsel Ms Maree Pateras, sent Ms Wilson a letter 2 via email at 3.13pm on Friday 28 May 20213 advising that her employment was terminated with immediate effect. The letter advised Ms Wilson that she would be paid 2 weeks’ pay in lieu of notice, together with any accrued but unused annual leave. Further, the letter outlined a number of obligations said to be in accordance with her employment contract which included various restraints and obligations regarding confidential information. This prompted an email reply from Ms Wilson at 8.24pm, which stated:
“Hi Maree,
I have received the letter attached but having questions regarding the followings. Could I please get some clarification on this and is there a restriction on my future employment? Thank you
In accordance with your employment contract, you are required to comply with a number of obligations including: (a) not directly or indirectly for the Restraint Period (at its maximum 12 months) and within the Restraint Area (at its maximum, Victoria): (i) solicit or accept an approach from any person or entity which was, during your employment with the Company, a client of the Company, or any of its related entities or associates and with for whom you engaged or performed services in the final 24 months of your employment with the view of soliciting for your benefit or the benefit of a third party the business of that client in competition to the Company or any of its related entities or associates; (ii) solicit, entice or persuade any employee or contractor of the Company with whom you had direct dealings in the last 2 years of your employment, to terminate his or her employment or engagement with the Company;” 4
[5] Ms Pateras sent a second email to Ms Wilson on 28 May 2021 at 3.15pm. This email attached a ‘without prejudice offer’ outlined in the Deed which was stated to be open until 5.00pm on Monday 31 May 2021, after which it would expire.
[6] This prompted an email reply from Ms Wilson at 8.40pm on 28 May 2021, to which a copy of the Deed signed by her was attached. This email outlined the following:
“Hi Maree,
Thank you for this offer. I do appreciate this and broadly accept the offer. However, it also depends on the clarification of the restrictions noted in the termination letter as stated in the previous email.
Not sure how much significant impact the restrictions would place on my next employment. Would appreciate your view on this. Thank you
Kind regards
Amy Wilson” (our emphasis)
[7] Ms Wilson sent a follow-up email at 12.27pm on Sunday 30 May 2021, stating:
“Hi Maree,
Hope you have a nice weekend. With regards to this, as we are in lockdown and I couldn't access any legal assistant, are we able to extend the expiring date after the lockdown?
Also, I would appreciate the clarification on the below. Could I please give you a call on Monday on this? Thank you” 5
[8] The reference to “the below” was to the email Ms Wilson had sent at 8.24pm on 28 May 2021.
[9] Ms Pateras replied with four emails sent on Sunday 30 May 2021 as follows:
1) In the first email sent at 1.37pm, it was stated:
“Dear Amy
Thank you for your email.
Whilst I can't give you personal legal advice as I act for Wilson Pateras, I can note the following:
The restraints do not prevent you from working as an accountant in any other business or from acting as an SMSF accountant. You are free to get another job in any other accounting business;
The restraints seek to prevent you from:
• “taking Wilson Pateras clients” or “working for Wilson Pateras clients” for a period of 12 months after you leave Wilson Pateras, in Victoria. This applies only to clients who you worked with at Wilson Pateras in the last 2 years of your employment
• Encouraging Wilson Pateras employees who you had direct contact with, in the last 2 years of your employment, to leave Wilson Pateras
I hope that clarifies your queries.” 6
2) The second email was sent at 1.39pm, and stated:
“Hi Amy
Thank you for sending through the signed Deed. I will arrange for the Company to sign and then provide you with a signed copy plus your Statement of Service.
Your payments will be made in accordance with the Deed.
Please see my earlier email in respect of your queries” 7
3) The third email was sent at 1.42pm, and stated:
“Hi Amy
One thing I should note is that the restraints are in your current employment agreement which you entered into, in 2020 – so they apply in any event.” 8
4) In the fourth email sent at 1.43pm, it was stated:
“Hi Amy,
Are you seeking to withdraw your acceptance of the Deed which the Company has also accepted, save for provision of a signed copy?
Please call me on Monday to discuss.” 9
[10] Ms Wilson and Ms Pateras had a discussion on the morning of Monday 31 May 2021. Ms Pateras said it took place at 8.45am and that she completed a file note concerning the substance of the discussion. 10 At 9.08am, Ms Pateras emailed the file note to herself, Mr Chris Wilson and Mr Nicholas Pateras.11 The contents of this file note are:
“Telephone Call with Amy Wilson 31.5.21 8:45am
• Amy stated she wanted to clarify the restrictions in her employment agreement
• MP stated she could not give employment law or legal advice to Amy but could only speak in general terms
• Amy wanted to know if the restrictions could prevent her from getting another job
• MP said no, WP could not prevent Amy from working as an accountant in another business.
• Amy said she understood and did not want to get further legal advice.
• Amy said she believed she could further contribute to the Company and would WP reconsider its decision?
• MP confirmed that termination was effective on Fri 28/5
• Amy said she understood and accepted the decision
• Amy asked what notice period she was entitled to. MP confirmed 2 weeks was the statutory period but WP was willing to offer 6 weeks to enable Amy to have some income whilst she looked for another job. Amy thanked the Company.
• MP said she needed to clarify Amy’s position as Amy had sent conflicting emails stating she had accepted the offer but then wanted more time? MP asked if Amy still accepted the offer or wanted to consider further and get legal advice?
• Amy said no- she understood and appreciated speaking with MP
• Amy appreciated everything the company had done for her and wanted to end things with a good relationship
• Amy confirmed the courier had come to collect her monitor and security pass on Friday
• Amy also confirmed she had client documents on her desktop at home downloaded and she would delete them
• MP asked Amy to send an email confirming that Amy accepted the offer. Once received, MP would organise for a statement of service to be emailed to Amy and payment to be made.”
[11] Ms Pateras sent Ms Wilson an email at 10.34am, which stated:
“Dear Amy
Further to our conversation this morning, I:
• confirm you have accepted the offer in the attached Deed of Release- please refer fully executed copy for your retention
• attach a signed statement of service
• confirm your payments will be made in accordance with the attached Deed
• confirm you will permanently delete any and all client and company information from your personal computer
Please confirm your understanding and agreement with the above and please confirm once you have deleted all Wilson Pateras client and company information from your home computer” 12
[12] Ms Wilson replied with an email sent at 1.01pm, stating:
“Hi Maree,
Thank you for your email below and I do appreciate the talk we had in the morning.
As illustrated, I do believe I’ve got a lot to offer to the company and my full potential hasn’t demonstrate yet. Therefore I have lodged an application with Fairwork to ask the company to reinstate my position. Thought to let you know first.
Thank you” 13
[13] As was outlined by Ms Wilson, her unfair dismissal application was filed with the Commission at 12.44pm on Monday 31 May 2021. 14
Appeal
[14] Ms Wilson relies on grounds of appeal expressed in the Form F7 – Notice of appeal (Form F7) as follows:
1) The Decision fails to mention Ms Wilson was induced to sign the Deed and the Respondent represented the Deed in a biased manner and omitted the real purposes of offering it. In particular, the Respondent represented the Deed as being the only option available and did not acknowledge the Deed waives “the right to seek justice on the termination”, with it always being her request “to stay on the job”.
2) The Decision fails to mention the Respondent misrepresented Ms Wilson’s leave entitlement on 31 May 2021.
3) The Decision fails to mention that before 5pm on 31 May 2021, Ms Wilson informed the Respondent in writing that she did not accept the Deed and that an unfair dismissal claim had been lodged. Further, it fails to mention that the Respondent sought confirmation of her acceptance on multiple occasions, verbally and in writing between 28 May 2021 and 31 May 2021, when she raised numerous inquiries regarding the Deed.
[15] Ms Wilson addressed the question of permission to appeal in the Form F7 as follows:
“As a member of general public, without prior knowledge about the deed of release or the fairwork unfair dismissal process, it is difficult to make a decision for the best interest. Rather, to certain extend, it relies on the party who presents the Deed to provide the information. In this instance, the respondent represented the Deed in a way is inducing, biased and misrepresented the terms and conditions. I believe this is against the professional code of conduct. It should be discouraged. I also believe the respondent should represent the true intention of offering the Deed of Release and discuss the rights and obligations of signing a Deed of Release.”
[16] Ms Wilson argues there was no valid accord and satisfaction. In particular, she submits:
• There was no agreement by both parties to be bound because she did not accept the Deed and the Respondent was not certain that she had accepted the Deed;
• There was no meeting of the minds that the parties would be bound by each and every term of the Deed in circumstances where she communicated “the unacceptance of the Deed” and the lodgement of the unfair dismissal application prior to 5pm on 31 May 2021; and
• The Deed is void or voidable on account of the Respondent’s conduct in misleading and inducing her to sign it.
[17] Ms Wilson submits the Commissioner erred in finding that the parties had entered into a binding agreement, because of a failure to have regard to the following:
• The Respondent did not present the full terms and conditions of the Deed, only presenting the benefits in order to induce her into signing it. Further, Ms Wilson was placed under time pressure to sign the Deed;
• The Respondent did not represent “the real intention of providing the Deed of release” and failed to mention that the Deed restricted her rights and waived her right to make a claim for unfair dismissal;
• When providing a signed copy of the Deed, Ms Wilson had questions regarding it;
• Ms Wilson had requested time to reconsider the Deed because she had not been able to obtain legal advice;
• The Respondent asked Ms Wilson whether she “would like to withdraw the deed”;
• The Respondent had asked Ms Wilson to provide written confirmation of acceptance after the telephone conversation between Ms Wilson and Ms Pateras; and
• The Respondent misrepresented that two weeks of personal leave would be paid in addition to the six week termination payment.
[18] Finally, Ms Wilson submits that it is in the public interest perspective that the practices adopted by the Respondent in representing legal documentation be discouraged.
[19] The Respondent submits:
• The Decision turns on its own facts and circumstances and Ms Wilson has not established any public interest upon which the Commission could be satisfied that permission to appeal should be granted;
• The evidence establishes there was no unconscionable conduct and the settled principles of contract formation indicate that the parties’ particular conduct in each matter must be analysed such that the matter does not raise issues of importance and general application;
• The Decision is also consistent with the principles of contract formation and other decisions on similar matters such that public interest is not otherwise enlivened;
• Even if the Commission was satisfied there was some public interest in the appeal, the Appellant has not demonstrated that any error in respect of determining that there was a binding Deed between the parties which extinguished Ms Wilson’s rights to bring an unfair dismissal claim;
• All the necessary facts were before the Commissioner in written submissions and evidence and were tested at the determinative conference;
• The Commissioner considered all of the evidence, identified the essential grounds and correctly concluded the Deed was binding; and
• No matters of importance or general application are raised by the appeal, there is no diversity of decisions at first instance, the Decision does not manifest an injustice and nor is there a basis to suggest it is counter intuitive, and the Decision was consistent with other decisions dealing with the question of whether there was a binding agreement.
[20] The Respondent submits Ms Wilson accepted a binding Deed of Release and later reneged on it and that the finding of the Commissioner that there was a binding agreement between the parties was reasonably open to her.
Appeal principles
[21] An appeal under s.604 of the Act is by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 15 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act provides:
“Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.”
[22] Under s.604(2), permission must be granted if it is in the public interest to do so, but may otherwise be granted on discretionary grounds.
[23] Section 400 of the Act modifies this position for appeals from a decision of the Commission in relation to matters arising under Part 3-2 of the Act. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[24] A number of previous Full Bench decisions have considered whether a decision made in relation to an unfair dismissal application involving the exercise of procedural powers located in Part 5-1 of the Act (which include the power to dismiss applications pursuant to s.587 of the Act), is a decision to which s.400(1) applies. 16 The conclusion in those decisions was that consistent with the decision of the Federal Court in Australian Postal Corporation v Gorman17 (Besanko J), appeals in such circumstances should be approached on the basis that s.400(1) applies and “for more abundant caution” the conclusion if s.400(1) did not apply should be alternatively stated.18 We will adopt this same course.
[25] If s.400 applies, the sole criterion for the grant or refusal of permission to appeal is the public interest. In Coal & Allied Mining Services Pty Ltd v Lawler and others, 19 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.20 If a Full Bench on appeal does not consider that it is the public interest to grant permission to appeal, it must refuse such permission.
[26] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.21 In GlaxoSmithKline Australia Pty Ltd v Makin 22 a Full Bench of the Commission identified some of the considerations that may 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.”23
[27] 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.24 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal and the public interest is not satisfied simply by the identification of error, or a preference for a different result.25
[28] It was not disputed before us that a deed agreed between the parties, containing a release from claims arising from a dismissal, was capable being a binding settlement or ‘accord and satisfaction’, extinguishing the existing cause of action and replacing it with a new cause of action. Further, that if there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success. This is the approach adopted by the Commissioner by reference to Australian Postal Corporation v Gorman. 26
[29] We have heard the parties on the application for permission to appeal and the appeal. The first appeal ground outlined in the Form F7 is a complaint that the Commissioner failed to have regard to the actions of the Respondent in inducing and pressuring Ms Wilson into signing the Deed and misrepresenting the purpose for which it was offered.
[30] The Commissioner found that the parties entered into a binding settlement through the execution of the Deed. 27 The settlement offer of the Respondent was outlined in the 3.15pm email from Ms Pateras on 28 May 2021, which stated:
“Further to our discussion today, please find attached our without prejudice offer.
This offer is open until 5.00pm, Monday 31 May 2021 after which it will expire.
If you wish to accept this offer, please sign the attached Deed in the presence of a witness and email to me. Once we receive the signed Deed, we can arrange for a signed Statement of Service to be provided to you and payment made.”
[31] Ms Wilson is a Chartered Accountant holding a Graduate Certificate of Chartered Accounting, a Diploma of Financial Planning and a Bachelor of Commerce. She has seven years industry experience and gave evidence before the Commissioner that having read through the Deed a number of times and carried out some research, she returned a signed copy at 8.40pm on 28 May 2021 via an email to Ms Pateras which outlined the following:
“Hi Maree,
Thank you for this offer. I do appreciate this and broadly accept the offer. However, it also depends on the clarification of the restrictions noted in the termination letter as stated in the previous email.
Not sure how much significant impact the restrictions would place on my next employment. Would appreciate your view on this. Thank you
Kind regards
Amy Wilson”
[32] Ms Wilson’s claim that her acceptance was conditional suffers from the problem that she did not withhold her signature pending the clarification she sought. Nor did she seek any amendment to the Deed before she signed it. While Ms Wilson sought clarification when returning the Deed, this was after she had signed it. The clarification Ms Wilson sought did not relate to matters contained in the offer that had been outlined in the Deed. The terms of the Deed in fact impose no restrictions upon Ms Wilson’s future employment.
[33] By executing the Deed, Ms Wilson accepted the settlement offer. The Commissioner’s fundamental finding that the parties reached a binding settlement was correct and it is not vitiated by the various submissions Ms Wilson has sought to advance on appeal.
[34] As to the first appeal ground, while it may be accepted that the Decision did not specifically deal with the allegation of misrepresentation, or the submissions of Ms Wilson that she was induced and pressured into signing the Deed, that allegation and those submissions lack merit when regard is had to the following factors:
a) The offer the Respondent made to pay an additional, ex gratia payment to Ms Wilson was subject to the Deed.
b) The Deed outlined that the parties have agreed to settle all matters relating to the employment, employment contract, performance management process and termination and that in consideration of the settlement payment, Ms Wilson would unconditionally release the Respondent from all claims relating to these matters.
c) Ms Wilson signed the Deed with a witness, having read it a number of times and having researched it.
d) In signing the Deed, Ms Wilson warranted:
• The Deed was voluntarily entered into;
• She understood the legal significance and effect of executing the Deed;
• None of the Respondent, the group within which the Respondent operates or their respective directors, employees, servants, agents, shareholders, assigns and insurers had made any promise, representation or inducement or been party to any conduct material to the entry into the Deed other than as set out in the Deed; and
• She was aware that the Respondent would be relying on the warranties in the Deed.
e) Ms Wilson returned a signed copy at 8.40pm on 28 May 2021 despite having a further three days (i.e. until 5.00pm on 31 May 2021) in which to consider her position.
f) The Respondent was under no obligation to provide Ms Wilson advice regarding the terms and effect of the Deed and the fact that its execution would prevent a subsequent claim against the Respondent arising from the dismissal was clear on its face, particularly to an employee of Ms Wilson’s qualifications and professional experience.
[35] The second appeal ground is that the Decision fails to mention the Respondent misrepresented Ms Wilson’s leave entitlement on 31 May 2021 and the third appeal ground is that the Decision fails to mention that Ms Wilson informed the Respondent in writing before 5pm on 31 May 2021 that she did not accept the Deed. These matters rest on the baseless proposition that the parties were engaging in ongoing negotiations after Ms Wilson had returned a signed copy of the Deed on 28 May 2021. The matters raised in the second and third appeal grounds have no bearing on the correctness of the conclusion that the matter settled when Ms Wilson signed the Deed on 28 May 2021.We observe that in any event, Ms Wilson has not demonstrated that the Respondent misrepresented the leave entitlement. Further, the 31 May 2021 date was at the outer limit of the period during which the offer remained open for acceptance and its acceptance at the outset made Ms Wilson’s advice in writing on 31 May 2021 irrelevant.
[36] For completeness, we also observe that in discussions subsequent to the execution of the Deed, Ms Pateras invited Ms Wilson to confirm whether she was seeking to withdraw her acceptance of the Deed and later, whether Ms Wilson was seeking to obtain legal advice. Ms Wilson did not seek to do either of these things when the opportunity was given. When these events, and the email from Ms Pateras sent at 10.34am on 31 May 2021 are considered fairly in context, they are not indications of an agreement not having been already made between the parties.
Conclusion
[37] This is not a matter that raises any issues of general importance or application. It turns on its own facts and circumstances. There is no relevant diversity of decisions at first instance such that appellate guidance would either be necessary or appropriate. No injustice or counter intuitive result is manifest.
[38] Ultimately, there is nothing in the submissions of Ms Wilson that persuades us there is an arguable case of appealable error in relation to the finding of the Commissioner. The fundamental finding of the Commissioner was correct. Because no arguable case of appealable error has been established in respect of the Commissioner’s determination concerning the binding agreement between the parties, we are not satisfied that it is in the public interest to grant permission to appeal, and under s.400(1) of the Act we would therefore have to refuse permission to appeal. Alternatively, if s.400(1) does not apply, we do not in any event consider that the grant of permission to appeal is warranted. Accordingly, permission must not be granted.
[39] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms A Wilson on her own behalf.
Ms S Masters for the Respondent.
Hearing details:
2021.
Melbourne (via Microsoft Teams):
December 3.
Printed by authority of the Commonwealth Government Printer
<PR736573>
1 [2021] FWC 5988.
2 AB at 98.
3 AB at 97.
4 AB at 243.
5 Ibid.
6 AB at 45.
7 AB at 113.
8 AB at 47.
9 AB at 115.
10 AB at 93.
11 AB at 118.
12 AB at 248.
13 Ibid.
14 AB at 1.
15 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17].
16 Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460 and Kirkman v DP World Melbourne Limited [2015] FWCFB 3995.
17 [2011] FCA 975.
18 Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460 at [14] and Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [15].
19 (2011) 192 FCR 78.
20 Ibid at [43].
21 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 234 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
22 [2010] FWAFB 5343, 197 IR 266.
23 Ibid at [27].
24 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
25 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, (2010) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
26 [2011] FCA 975 at [31]-[33].
27 Decision at [18].
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