Anne Erstich v Jeremy J Hartley Pty Ltd T/A Subway

[2015] FWC 8192

[2015] FWC 8192

The attached document replaces the document previously issued with the above code on 30 November 2015.

In paragraph five, the date ‘21 October 2001’ is replaced with ’21 October 2015’

Associate to Deputy President Gooley.

Dated 9 December 2015.

[2015] FWC 8192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anne Erstich
v
Jeremy J Hartley Pty Ltd T/A Subway
(U2015/11463)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Anne Erstich lodged an application for an unfair dismissal remedy on 28 August 2015. The application was referred to conciliation on 21 September 2015 where a settlement was reached and the Conciliator confirmed this in writing and provided the parties with terms of settlement.

[2] On 1 October 2015 Ms Erstich telephoned the Conciliator and left a voicemail advising that she no longer wished to go ahead with the settlement reached at conciliation and that she wished to take the matter further. This was confirmed by email on 8 October 2015, but Ms Erstich did not provide a copy of the email to the Jeremy J Hartley Pty Ltd trading as Subway.

[3] On 20 October 2015 Ms Erstich sent an email advising that she wished to have her unfair dismissal claim heard. Again, she did not forward a copy to Subway. On 20 October 2015 Subway telephoned the Commission advised that the settlement sums had been paid to Ms Erstich’s representative and noted that Ms Erstich had waived the cooling off period.

[4] On 20 October 2015 Ms Erstich’s representative provided the Commission with a copy of the terms of settlement signed on Ms Erstich’s behalf by her representative on 23 September 2015 and an authority signed by Ms Erstich on 24 August 2015 in which she authorised her representative as her agent to sign any settlement agreement on her behalf and for the monies to be paid to her representative. On her application form Ms Erstich identified Tom Hakkinen form Unfair Dismissals Australia as her representative. The terms of settlement were signed by Mr Matthew Southwell the Director of Unfair Dismissals Australia.

[5] On 21 October 2015, I caused an email to be sent to the parties in which I advised that I was considering whether I should dismiss his application under s.587 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.

[6] On 20 November 2015 Mr Tom Hakkinen forwarded to the Commission a Form F54 advising that Unfair Dismissals Australia Pty Ltd no longer acted for Ms Erstich.

[7] Ms Erstich submitted that she did not sign the terms of settlement. Further she advised that after the conciliation she was not happy with the outcome and she told her representative that she didn’t want to sign the settlement agreement and she wasn’t going to sign it. It was her submission that he knew he did not have her authority to sign the document. She also submitted that Mr Hakkinen was her representative and she did not know who Mr Southwell was. She said she had blocked her bank account so that no monies could be paid to her. She said that when she signed the authorisation form it was to assist her to go to conciliation and that the conciliation process was a huge disappointment as she was misled about the resignation.

[8] At the hearing Ms Erstich submitted that her head was not in the right place at the conciliation as she had just lost her job and had financial difficulties. She said she felt pressured to settle the matter from everyone at the conciliation including her representative. Further, she complained that Subway had prevented her from obtaining other employment.

[9] Ms Erstich also complained that she was not paid the settlement sum but also advised that she had had her bank account blocked, so that it could not be paid to her. It was her evidence that, she told her representative the day after the conciliation that she was not happy with the settlement and therefore he had no authority to sign on her behalf. Ms Erstich advised that she was not aware that a binding agreement could be reached without her signing the terms of settlement.

[10] Subway submitted that Ms Erstich verbally accepted the terms of settlement at the conciliation. She made no complaint about her representative at the conciliation. The first they knew about her dissatisfaction was when the Commission contacted them on 20 October 2015. At the conciliation, Ms Erstich was advised that there was no cooling off period and that settlement was final. It submitted that Ms Erstich has provided no explanation for the delay in advising Subway that she did not wish to proceed with agreement. Further, it submitted that if Ms Erstich had a complaint about the settlement she should have made it immediately.

[11] Subway submitted that they have complied with the terms of the settlement including paying the relevant superannuation and tax. Presumably the settlement sum is with Ms Erstich’s representative.

[12] In response to Ms Erstich submission that she was vulnerable at the time of the settlement, Subway submitted that this should be rejected as Ms Erstich was represented at the conciliation. It further submitted that just because Ms Erstich was dissatisfied with the settlement is no ground to permit the matter to proceed.

[13] In Masters v Cameron,³ the High Court held that where parties who have been in negotiation and 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. 4

[14] In this matter Ms Erstich settled her claim at conciliation. I find that the agreement was an agreement of the type described in categories 1 or 2 above. I do not accept the agreement was not made until the terms of settlement were signed. Ms Erstich was represented at the conciliation and she was told that the settlement was final and she had no cooling off period. This meant Ms Erstich was not entitled to change her mind after the conciliation. Even if I accept, that the terms of settlement were signed without her authority that is not relevant because the agreement was made at the conciliation.

[15] If Ms Erstich has a complaint about her representative and its failure to pay her the settlement monies that is a matter she must take up with her representative and if necessary any relevant regulatory body. It is not a matter for this Commission.

[16] The Commission has the power to dismiss an application if it has no reasonable prospects of success.

[17] In Australia Postal Corporation v Gorman⁵, Besanko J said as follows:

“An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.”⁶

[18] His Honour went on to say:

“a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”⁷

[19] In this matter Subway have complied with the terms of settlement. They have paid the settlement sum to Ms Erstich’s representative in accordance with her authorisation. Ms Erstich never told Subway that she had withdrawn that authority.

[20] 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.⁸ However, the decision to dismiss is discretionary and while Ms Erstich’s agent 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 Subway provides evidence that it has provided Ms Erstich with a Statement of Service, I will dismiss Ms Erstich’s application.

DEPUTY PRESIDENT

Appearances:

A Ertsich on her own behalf.

D Hartley and J Hartley for the Respondent.

Hearing details:

2015.

Perth

November 26.

 1  [2012] FWAFB 8021.

 2 [2011] FCA 975

3 [1954] 91 CLR at 360-361.

 4   Ibid.

5 [2011] FCA 975.

6 Ibid at [31].

7 Ibid at [33].

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

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574444>