Arthur Iosifidis v Carter Holt Harvey Woodproducts Australia Pty Ltd

[2018] FWC 2259

[2018] FWC 2259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arthur Iosifidis
v
Carter Holt Harvey Woodproducts Australia Pty Ltd
(U2018/139)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 APRIL 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 1 April 2018, Mr Arthur Iosifidis made an application for unfair dismissal remedy to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2) Mr Iosifidis said that his employment had been terminated by CHH T/A Carter Holt Harvey Wood Products on 15 December 2017, with his dismissal also taking effect that day.

[3] In the Form F3 – Employer Response to Unfair Dismissal Application, the Respondent was recorded as ‘Carter Holt Harvey Woodproducts Australia Pty Ltd’ and no jurisdictional challenge was made that the Respondent recorded in the Form F2 was not the employer of Mr Iosifidis. I have therefore amended the application so as to record Carter Holt Harvey Woodproducts Australia Pty Ltd (CHH) as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of theAct. 1 I also note that this was the name of the entity described as the Respondent in the terms of settlement that are the subject of this decision.

Conciliation

[4] The application was referred to conciliation on Wednesday 7 February 2018. At conciliation, Mr Iosifidis was represented by Mr Danijel Malbaša, Senior Legal Officer of the Construction, Forestry, Mining and Energy Union (CFMEU). As Mr Iosifidis was represented, there was no cooling off period in relation to any settlement reached at conciliation.

[5] At the conciliation, the parties appeared to reach a settlement agreement. This was confirmed in correspondence the conciliator sent to them shortly after conciliation, which stated “Thank you for your participation in the conciliation in the above matter. I confirm that you reached a settlement agreement and I attach the terms of settlement…”

[6] On Thursday 15 February 2018, Mr Iosifidis sought to contact the Commission’s conciliator by telephone. He left a voicemail message stating that he had reviewed the terms of settlement and believed there to be some inconsistencies and terms that he was “not happy about”. The conciliator then telephoned the CFMEU and asked for contact to be made with Mr Iosifidis to address any concerns that he may have with the terms of settlement.

[7] Mr Iosifidis left two further voicemail messages with the conciliator shortly after this. In the first voicemail message he advised that he was “under pressure from the CFMEU” to sign the terms of settlement but he did not feel comfortable signing the documents because “there were a lot of falsehoods”, he had “had a change of heart” and he did not want to go through with it. He warned that he may decline to sign the documents and that the matter may have to proceed to hearing. In the second voicemail message, Mr Iosifidis stated that he had decided he was not going to sign the terms of settlement, there were some inconsistencies that were not true, he was not comfortable and he would “rather take [his matter] to the tribunal and allow the chance for the witnesses to speak on [his] behalf”.

[8] The conciliator proceeded to contact the CHH to advise that Mr Iosifidis had decided to reject the settlement proposal.

[9] At 2.50pm on 15 February 2018, the conciliator received email correspondence from Mr Malbaša. He advised the following:

“The CFMEU advised Arthur Losifids to sign the agreed Terms of Settlement.

We explained the Terms of Settlement to him. He said he understood.

He advised he would not be signing the Terms of Settlement.

We advised Arthur we would not be proceeding with this matter any further and if he wants to pursue his matter further, he will need to engage external representation. He said he understood.

…

From the CFMEU’s end, the matter has concluded.”

[10] At 4.51pm Mr Iosifidis sent a facsimile to the Commission stating that the terms of settlement contained “statements and inconsistencies preventing [him] from signing”. He further stated “I would like to put this behind me, but not without having the opertunity to speak up… So I would like to take this to the tribunal [sic]”.

[11] On 20 February 2018, the Commission advised the parties that the matter had been referred to Deputy President Clancy, Panel Head - Termination of Employment. This correspondence stated:

“We understand the Applicant wishes to have his unfair dismissal application heard and determined. Our records show that this matter was settled at a conciliation conducted by the Commission on Wednesday, 7 February 2018. An email attaching a Terms of Settlement was sent to the parties on even date.

It is not immediately clear from the correspondence whether the applicant has reached a binding agreement with the respondent to settle the application or whether, instead, an in-principle agreement with the respondent, which falls short of a final binding agreement, was reached.

If the applicant reached a binding agreement but has changed his mind and now wants to proceed with the application before the Commission, he should be aware that the respondent can enforce the agreement in a court. Further, if the respondent is successful in court, the applicant may face an application to pay the respondent’s legal and other costs of the court action.

If, however, the applicant is alleging he only reached an in-principle agreement with the respondent then the application may be determined through a conference or hearing by the Commission.

The Applicant is to file and serve by close of business on 5 March 2018 submissions and evidence as to why his application should proceed to a hearing.

Should the Applicant have an arguable case that his application should proceed then the Respondent will be given an opportunity to make submissions.

If on the basis of the material filed by the Applicant there is no arguable case, the application will be dealt with on the material before the Commission.”

[12] Mr Iosifidis did not file any material in response.

Application pursuant to s.587

[13] On 15 March 2018, CHH emailed a letter to the Commission dated 6 March 2018 advising it had not been served with any material from Mr Iosifidis regarding why his application should proceed to arbitration. CHH then submitted:

•  the matter was resolved by way of a binding agreement at conciliation on 7 February 2018.

•  the parties settled the claim on terms expressly deliberated and agreed during the conciliation.

•  The terms of settlement were recorded in the terms of settlement document immediately distributed by the conciliator following the conclusion of the conciliation.

[14] Further, CHH submitted that the Commission should be satisfied that a settlement was reached as:

•  At the conclusion of the conciliation conference, the terms of the agreement were articulated by the Conciliator and the parties were invited to confirm that they agreed to the terms of settlement articulated by the Conciliator.

•  Both Mr Iosifidis and CHH confirmed that they accepted and agreed to the terms of settlement. No one indicated that the terms were not as agreed;

•  The Conciliator drew up the terms of the agreement between the parties;

•  The express statement made by the Conciliator in his email of 7 February 2018 which stated “I confirm that you reached a settlement agreement and I attach the terms of settlement”; and

•  Mr Iosifidis did not dispute the terms of the agreement provided by the conciliator.

[15] CHH advised that it had done all it could to comply with the terms of agreement reached between the parties and submitted the agreement is a “valid accord”, satisfies the claim and extinguishes the pre-existing cause of action.

[16] CHH acknowledged the agreement was not executed by Mr Iosifidis but relied upon Masters v Cameron 2in support of its claim that a binding agreement can be reached without a document actually being signed.

[17] Ultimately, CHH submitted that the application should be dismissed pursuant to s.587(1)(b) of the Act on the grounds that the parties had reached a binding agreement settling the claim.

[18] On 19 March 2018, correspondence from the Commission was sent to the parties regarding the Respondent’s application for the matter to be dismissed pursuant to s.587. Mr Iosifidis was directed to provide a response to CHH’s application and CHH was directed to confirm whether it had complied with its obligations under the settlement agreement.

[19] On 22 March 2018, CHH sent email correspondence to the Commission advising it had complied with all unconditional obligations under the agreement. It confirmed it had provided Mr Iosifidis a statement of service and a 10 year service award certificate. CHH referred to further two obligations in the settlement agreement that are conditional on Mr Iosifidis first undertaking certain steps and undertook to attend to all conditional obligations under the agreement once Mr Iosifidis satisfies these necessary steps.

Submissions of Mr Iosifidis in response to the s.587 application

[20] On 22 March 2018, Mr Iosifidis filed submissions with the Commission. They contain a range of allegations regarding his employment CHH and as to whether his matter should proceed to arbitration, Mr Iosifidis submitted the following:

“i don’t realy want to take this to arbitration. For i can’t see myself going back to that place.

…

i refuse to sighn the settlement agreement because of inconsistancies and outright fulsehoods…” [sic]

[21] Mr Iosifidis did not specifically address the s.587 application by CHH and nor did he address whether the parties had reached a binding agreement.

Consideration

[22] The issue for me to determine is whether a binding settlement agreement has been reached between Mr Iosifidis and CHH.

[23] In Masters v Cameron, 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. 3

[24] As to whether there is a binding agreement in place, although he had the opportunity to do so, Mr Iosifidis did not challenge the central submission of CCH: “at the conclusion of the conciliation conference, the terms of the agreement were articulated by the Conciliator. Each of the parties were invited to confirm that they agreed to the terms of settlement articulated by the Conciliator. Both the Applicant and the Respondent confirmed that they accepted and agreed to the terms of settlement. No one indicated that the terms were not as agreed”.

[25] It is clear from the correspondence before me that the conciliator and Mr Iosifidis’ then representative shared the view that the matter had been settled at the conciliation on 7 February 2018.

[26] Firstly, the email correspondence from the conciliator on 7 February 2018 was unequivocal and the terms of settlement drafted by him were not said to be subject to any conditions.

[27] Secondly, the CFMEU Senior Legal Officer who represented Mr Iosifidis during the conciliation conference advised the Commission that Mr Iosifidis told him he understood the terms of settlement. I have also noted the CFMEU advised Mr Iosifidis to sign to document. These matters lead me to conclude that it was the opinion of the CFMEU that the terms of settlement reflect what was agreed at the conciliation.

[28] Finally, as regards Mr Iosifidis himself, I have noted that in one of his voicemail messages to the conciliator on 15 February, Mr Iosifidis said he had “had a change of heart” and he wanted “to go through with” his unfair dismissal application.

[29] I am therefore satisfied that although Mr Iosifidis subsequently changed his mind, agreement was reached at the conciliation on 7 February 2018 and it was reflected in the terms of settlement document drafted by the conciliator. I am satisfied the agreement fell within either the first or second category in Masters v Cameron and in either case, there was a binding contract. The agreement was immediately binding and reflected in the terms of settlement document provided by the conciliator to parties shortly after the conciliation

[30] In Australia Postal Corporation v Gorman 4, Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.5

[31] His Honour stated:

“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, 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.” 6

[32] As can be seen from Australia Postal Corporation v Gorman, 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 has no reasonable prospects of success.

[33] Section 587(1) of the Act provides as follows:

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.

[34] As I have found that the parties reached agreement at the conciliation on 7 February 2018 and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. The settlement agreement that was made is a complete answer to Mr Iosifidis’ claim that he was unfairly dismissed.

Conclusion

[35] For the reasons outlined above, I find that Mr Iosifidis entered into a binding settlement of his claim and therefore, his application for unfair dismissal remedy is dismissed. An order to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR602156>

 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

 2 (1954) 91 CLR 353.

 3   Ibid at [360]-[361].

 4 [2011] FCA 975.

 5 Ibid at [31].

 6 Ibid at [33].