Athanasia Diacoumis v IMOP Pty Limited
[2022] FWC 2135
•16 AUGUST 2022
| [2022] FWC 2135 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Athanasia Diacoumis
v
IMOP Pty Limited
(U2022/4444)
| COMMISSIONER BISSETT | MELBOURNE, 16 AUGUST 2022 |
Application for an unfair dismissal remedy
On 15 April 2022 Ms Athanasia (Sia) Diacoumis (Applicant) made an application seeking a remedy for unfair dismissal in relation to the termination of her employment with IMOP Pty Limited (Respondent).
BACKGROUND
The application was subject to conciliation before a staff conciliator on 30 May 2022 where the matter apparently settled by agreement although a 3-day cooling off period applied to that agreement. Correspondence was sent to the parties that day by the conciliator which had attached to it to terms of settlement of the agreement reached. The letter also said (in bold):
Unless I hear from either of you in writing by the close of business Thursday 2 June 2022, the case is resolved in the terms attached and I will close the file accordingly.
If one of the parties does not want to proceed with the settlement and advises me during the cooling off period, I will refer the case for arbitration before a Member of the Commission…
On 31 May 2022 at 1:38pm the Applicant sent an email to the conciliator which read:
Good Evening [conciliator name redacted],
I have a question about the settlement you sent me yesterday. The part where it says 'No Disparagement' I'm just confused about. Does this mean I can't talk about my situation if a new employer asks or just in general? Is this like a gag order ?
I have tried calling you and left you a message too.
Could you please call me back or email me to let me know as this isn't sitting well with me.
Thank you in advance
Sia Diacoumis
On 31 May 29022 at 2:03pm the conciliator telephoned the Applicant. The Applicant’s mother was present during the telephone call. What was said in that telephone call is in dispute.
On 15 June 2022 at 3:58pm the Applicant sent an email to the staff conciliator in which she said:
Good evening [conciliator name redacted],
Last week Wednesday I had to urgently go to Melbourne with mum and didn't have the chance to get to the paperwork sent to me. I do remember from the meeting that you said this should go ahead even if I don't get to respond.
Now that I just got back could you please update me on what's happening? Just to remind you the case is U2022/4444 - Diacoumis v IMPO Pty Limited. Happy for an email back or a call on my mobile which is – [number redacted]
Kind regards,
Sia Diacoumis
The staff conciliator responded later that day
Hi Sia
You just need to sign the terms of settlement document previously emailed to you and send it to paul@[details redacted]. I’ve attached it again here for you.
Kind regards[name redacted]
Conciliator
Shortly thereafter at 4:58pm that Applicant sent the following email to the conciliator:
[Name redacted], thank you for the update.
After long discussions with both my parents about what to do; I don't feel comfortable signing this document. From the last time I spoke to you about my concern with the 'no disparagement' section, I couldn't help but feel like it was a gag order. If I have an employer ask me why I'm a senior hairdresser if I can't do x, y, and z I should freely be able to explain myself without worrying if I'm going to get sued or not. I asked you if this is okay for reassurance and all you had to say was 'depends on what your truth is" and "it doesn't look good for you when talking about it" which was not helpful at all.
For this reason, I won't be agreeing to the settlement and want to take this to court instead. Please advise me if there is someone else I need to get in touch with for this.
Kind regards
Sia Diacoumis
The conciliator replied at 9:17am on 16 June 2022 and referred the Applicant to the letter confirming settlement and the cooling off period of 30 May 2022:
Hi Sia
Please refer to the original email I sent out. I have included the relevant section for you below:
As discussed, a three-day cooling off period now applies. I will hold the file for three business days to allow you (the parties) time to consider the agreement reached at conciliation. Unless I hear from either of you in writing by the close of business Thursday 2 June 2022, the case is resolved in the terms attached and I will close the file accordingly.
As I didn’t hear from you during the cooling off period, the matter has now been closed. You may wish to consider getting legal advice. The Commission’s role in the dispute is at an end.Kind regards
[name redacted]
Conciliator
At 12:25pm on 16 June the Applicant again wrote to the conciliator:
[name redacted]
This is what I asked you in the first email. As I didn’t get to respond within the 3 days what happens?
Do I get my letter and money? Do I miss out completely because I didn’t sign? Am I able to take this court?
I’m not understanding and would like a clear answer to what I’m asking.
Kind regards,
Sia Diacoumis
The conciliator replied shortly thereafter at 12:38pm:
Hi Sia
I’ll try my best to answer your questions. Because you didn’t respond within 3 days, “the case is resolved in the terms attached”. The ‘terms attached’ is the terms of settlement document you were thinking about signing or not.
If you sign it and send it to the respondent, you will receive the statement of service and the payment.
If you don’t sign it, you probably won’t receive the statement of service and the payment.
I cannot answer whether you can take this to court. You may wish to get legal advice on your options. I can confirm that you reached an agreement and that the matter is now closed. As I mentioned earlier, the Commission’s role in your dispute has been finalised.
Kind regards
[name redacted]
Conciliator
To avoid any confusion the parties were provided with a copy of the emails of 15 and 16 June 2022 prior to the date of hearing before me.
REQUEST TO HAVE THE MATTER RE-OPENED
On 19 June 2022 the Applicant sent an email to the Commission which read:
To whom it may concern,
My name is Athanasia (Sia) Diacoumis I opened a case against my recent previous employer for unfair dismissal. The case is U2022/4444 - Diacoumis v IMPO Pty Limited.
I am requesting this case reopened for the following reasons:
- I was given a 3-day cooling-off period to make a decision. During this 3-day period, I had to travel to Melbourne for a personal matter. I didn't have enough time to carefully consider all the written conditions of the settlement.
- I contacted the case mediator to clarify some of the conditions of the settlement, in particular, the 'no disparagement' clause. The mediator's response was unclear to me and seemed like a grey area. The 3- day period was not enough time to seek appropriate advice, especially losing one day to travel and I was unable to make an informed decision.
- During the mediation process I understood the verbal agreements between the parties which were mainly centered (sic) around monetary compensation. I had expressed at the time to take this matter to the tribunal but I felt like I wasn't being listened to because towards the end of the conciliation the mediator strongly discouraged this.
I feel that if this matter isn't re-opened I have cause for complaint.
Please feel free to contact me on [number redacted]
Sincerely,
Athanasia Diacoumis
The request of the Applicant was listed for Mention before me on 22 June 2022 and, on 23 June 2022 Directions were issued to the parties. These Directions required the Applicant to file and serve her submissions and evidence as to whether a binding settlement agreement had been reached between the parties by 1 July 2022 and the Respondent to file its submissions and evidence by 8 July 2022. Each party filed submissions and witness evidence and indicated that they wished to cross examine the other party’s witness. In these circumstances the matter was listed for hearing before me on 3 August 2022.
EVIDENCE AND SUBMISSIONS
Ms Joanne Diacoumis, the Applicant’s mother was present at both the conciliation on 30 May 2022 and the discussion with the conciliator on 31 May 2022. Joanne Diacoumis said that at the conciliation the conciliator[1] “mainly discussed” a payment in terms of weeks’ pay, which was the major point of negotiation between the parties. She said that this, along with a statement of service, were “recommended” by the conciliator. She said that no other terms were discussed which was why the Applicant accepted the 3-day cooling off period.
With respect to the telephone conversation with the conciliator on 31 May 2022 Joanne Diacoumis said that the Applicant questioned the conciliator about the non-disparagement clause and advised her concerns. She says that the Applicant was not satisfied with the explanation and clearly said “it is best for the matter to be taken to court[2]”.
In the conversation with the conciliator on 31 May 2021 Joanne Diacoumis says the conciliator was “wishy-washy” about the non-disparagement clause and that the Applicant was not worried that she could not say bad things about the Respondent but that she felt that she was being gagged (by the clause) unfairly. Joanne Diacoumis said the Applicant was not just dissatisfied with the non-disparagement term but was “dissatisfied with the whole process”, that she told the conciliator she wanted to proceed to hearing but the conciliator “convinced her to settle”.
Prior to the hearing and at the request of the Respondent – relying on what was said by Joanne Diacoumis in her witness statement particularly in relation to the telephone call of 31 May 2022 – the conciliator who conducted the conciliation on 30 May 2022 and who had the conversation with the Applicant on 31 May 2022 was called to give evidence.
The Conciliator’s evidence is that in the conciliation conference of 30 May 2022:
Financial aspects of an agreement were reached
“standard terms” such as confidentiality and non-disparagement were discussed with the parties. In particular the conciliator said:
“As in any conciliation, I would explain when asked to draft terms between the parties, what those terms include, what I would call the standard terms which you referred to as the boilerplate terms I think would be the same mutual confidentiality around what's been agreed, mutual non-disparagement. So we don't say anything bad about each other after the conference and a full release, meaning no further claims from either side regarding the employment.”
The Applicant did not otherwise ask for an explanation of the non-disparagement provision
A cooling off period was also agreed which was to the benefit of both parties but otherwise an agreement was reached
The conciliator also said that he would not have used the phrase “basic settlement terms” to describe any terms of the agreement. He said that it is his practice to use the term “standard terms” but would explain that “standard terms include mutual confidentiality, which means we don't talk about the deal, mutual non disparagement, which means we don't say anything bad about each other, especially in public and a full release, meaning no further claims after the process. That's my go to sentence and that's what I say with everybody.” The conciliator also said that there had been a lengthy conversation with the Applicant with her mother there to support her. He did not consider that the Applicant had an inability to understand the conversation that was had.
The conciliator gave evidence that on 31 May 2022 he received an email from the Applicant. He telephoned the Applicant as she had requested a telephone call (or an email) in response to her email. The conciliator did not agree that the Applicant said she wanted to take her matter to court, and his recollection was that the Applicant was considering her options. In this respect he suggested to the Applicant that she may wish to get legal advice. The conciliator agreed that he may have “beaten around the bush” in answering some of the Applicant’s question as he did not want to be considered to be offering any legal advice to the Applicant. The conciliator said that the conversation on 31 May 2022 was “not a nice one” and that the Applicant was stressed about the situation. He said that he tried to steer the conversation away from him being seen to give legal advice.
The conciliator said that he did not feel like he had stopped the Applicant advising him that she wished to withdraw from the agreement and have her matter go to court. He said that in the conversation the Applicant raised concerns with him, he suggested she get legal advice on those concerns and the conversation was left without the Applicant having reached a decision. While agreeing that the Applicant had said words like “I’m wondering if I should take this to court” or “maybe I should take this to court” she never expressly said “I want to” take the matter to court. Further, the Applicant did not ask him to take the matter to court.
The conciliator further said that if a party asks at any point to withdraw from an agreement during the cooling off period the matter will go to the next stage of proceedings and that he has no discretion to accept or reject such a request.
Mr Paul Gaspar is an accountant and registered tax agent for the Respondent. He attended the conciliation along with Ms Carol Haddad of the Respondent. He gave evidence that the conciliator was clear on the purpose of conciliation and “very professional” in the way he dealt with the parties. His evidence is that the conciliation took about 2 hours and that the conciliator facilitated an agreement between the parties. He said that, after the parties agreed on the terms, the conciliator said he would draft the agreement and that there would be a cooling off period of 3 business days.
Mr Gaspar said that the conciliator did mention the standard terms of confidentiality, non-disparagement and the release and that these were discussed with all of the parties on the call.
The Applicant’s case is twofold – firstly she says that the terms of the agreement reached in the conciliation were not fully explained to her. She submits that agreement was reached on the monetary terms and the cooling off period was explained. However, she submits that the further terms of confidentiality, discontinuance, release and non-disparagement terms were not discussed or explained. The Applicant submits that, had those terms been explained, she would have sought a cooling off period of between 10 and 20 business days to get advice as to the terms.
The second limb of the Applicant’s submission in that she advised the conciliator, in a telephone conversation with him on 31 May 2022, that she wished to proceed with her case “to court” and in this respect invoked her rights under the cooling off period to not proceed with the agreement. She submits that the conciliator should have followed through with her request to go to court.
The Respondent submits that the terms of the agreement were set out clearly by the conciliator including the terms in relation to non-disparagement, confidentiality and the release. In addition the Respondent submits that both parties were granted a cooling off period. After 2 June 2022 (the expiration of the cooling off period) when neither party had indicated that they had exercised their rights to not proceed with the agreement the Respondent considered that the agreement had been finalised.
The Respondent also submits that the email from the Applicant to the conciliator of 15 June 2022 suggests that she did not withdraw from the agreement at any time prior to that date (by which time the cooling off period had expired).
CONSIDERATION
It is well established that, if a binding settlement agreement has been reached between the parties in an unfair dismissal matter, the application has no reasonable prospects of success and can be dismissed pursuant to s.587(1)(c) of the FW Act. This is so as the agreement entered into is a complete answer to the claim for unfair dismissal.[3]
Whether an agreement has been reached is a matter of fact to be determined by the Commission.[4]
An agreement reached in conciliation will fall into one of 4 categories:
1. The parties have reached finality in their agreement and intend to be immediately bound by those terms but at the same time propose that they be restated more fully in writing;
2. The parties have agreed on the terms and intend no departure but have made performance of the terms dependent on execution of the formal agreement;
3. The parties intend no finalised agreement until they execute the formal document;[5]
4. The parties are bound by the agreed terms but agree to make a further contract in substitution containing, by concept, additional terms[6]
In this case there are two critical matters to determined – firstly if an agreement was reached in conciliation on 30 May 2022 and, secondly, if it was made, if the Applicant withdrew from that agreement on 31 May 2022 or at any other time within the cooling off period.
As to whether an agreement was reached on 30 May 2022 I have heard evidence from the Applicant’s mother and Mr Gasper, both of whom were present at the conciliation and from the conciliator. I also have submissions from the Applicant as to what she said occurred in the conciliation.
In this case I prefer the evidence of the conciliator and Mr Gasper to that of Ms J Diacoumis that the terms of the agreement, including the “standard terms” were explained to both parties following the settlement of the monetary terms and the statement of service. The evidence of the conciliator was considered and clear on this and he did not waiver in his evidence. He was confident in what he said and confirmed that setting out all of the relevant terms was the normal course in his practice. I am aware that the conciliator is well trained as are all Commission staff conciliators and is experienced in his job. I also accept that the conciliator is impartial in his role and am aware that this is critical to successful conciliations. On the balance of probabilities I consider it more likely that the Applicant had all of the terms of the agreement explained and that she agreed to the terms in the conciliation on 30 May 2022.
I am supported in the conclusion I have reached by the inclusion of the cooling off period which provided the Applicant with the opportunity to withdraw from the agreement within the following 3 business days should what was written not reflect what she understood she had agreed to or if she just changed her mind or was no longer sure of the agreement reached.. The Applicant had access to the written terms of the agreement from the 30 May 2022, the written agreement having been distributed by the conciliator that day with the letter that explained how a party might withdraw from the agreement if they chose to do so.
I do not accept that the Applicant, on 31 May 2022 or at any time prior to the expiration of the cooling off period, unequivocally withdrew from the agreement. I accept that she was concerned at the limitations the non-disparagement clause may have had on her. While I accept that the Applicant indicated to the conciliator in the telephone call on 31 May 2022 that she was considering taking the matter “to court” (arbitration), I do not accept that she clearly said that she wished to withdraw from the agreement and instead go to court. I do accept that the conciliator did suggest that the Applicant get legal or other advice but that he encourages parties to be aware of their legal rights and obligations as a matter of course.
My conclusion as to what occurred on 31 May 2022 is supported by emails from the Applicant to the conciliator on 15 June 2022. In her first email that day she said:
Last week Wednesday I had to urgently go to Melbourne with mum and didn't have the chance to get to the paperwork sent to me. I do remember from the meeting that you said this should go ahead even if I don't get to respond.
While this email might suggest the Applicant travelled to Melbourne on 8 June 2022 she did provide an accommodation receipt which suggests (and I accept) she was in Melbourne from 1 – 8 June 2022. The Applicant’s failure to then communicate her concerns before 15 June 2022 was not explained.
The email of 15 June 2022 does no more than indicate the Applicant did not “get to the paperwork” – presumably signing the terms of the agreement – before she travelled and enquiring if “this” (again presumably the agreement) went ahead. There is no mention in this email that the Applicant had sought to withdraw from the agreement and/or had not heard what would happen to her case following advice previously given that she wished to go to court.
In her second email on 15 June 2022 the Applicant said:
After long discussions with both my parents about what to do; I don't feel comfortable signing this document. From the last time I spoke to you about my concern with the 'no disparagement' section, I couldn't help but feel like it was a gag order…
For this reason, I won't be agreeing to the settlement and want to take this to court instead. Please advise me if there is someone else I need to get in touch with for this.
In relating what occurred on 31 May 2022 the Applicant does not say that she had already requested that the matter go to court. There is nothing in this email to suggest that the Applicant believed she had withdrawn from the agreement prior to this date. On 15 June 2022 – well after the expiration of the 3-day cooling off period – the Applicant said she did not feel “comfortable” signing the agreement and would not be agreeing to settle.
The Applicant’s email of 16 June 2022 to the conciliator supports my conclusion that she did not consider, at this stage that she had withdrawn from the agreement within the cooling off period. In that email she asked “As I didn't get to respond within the 3 days what happens…Do I get my letter and money? Do I miss out completely because I didn’t sign? Am I able to take this court?” This email does not read as one where the Applicant believed she had not agreed to or, alternatively, withdrawn from the agreement. If she did consider she had withdrawn, asking if she would get the money contained in the settlement agreement makes no sense.
The conduct of the Applicant on 15 and 16 June 2022 does not support a conclusion that she sought to withdraw from the agreement at any time prior to this date. To the extent she indicated withdrawal clearly on 15 June 2022 she was too late in terms of the cooling off period and the binding nature of the agreement.
The 3-day cooling off period is important. It acknowledges that both parties can feel overwhelmed by the conciliation process and may, over the coming few days, develop regrets at having indicated agreement. It allows either party, for any reason and without having to give explanation or provide justification, to withdraw from the agreement reached and have their matter proceed to arbitration. The Applicant had her chance to do so and could have indicated this any time up to the end of 2 June 2022. She could have withdrawn by email or, if she did not have access to emails, by calling the Commission. She did not do so and did not indicate a wish to withdraw until 15 June 2022 – some two weeks after the expiration of the cooling off period.
CONCLUSION
The agreement reached between the Applicant and Respondent must stand. I am satisfied that the agreement is of the first type cited above at paragraph [30]. I reach this conclusion as the terms of the agreement were sent to the parties on the day of the conciliation.
For the reasons given above I am satisfied that a binding settlement agreement was reached between the Applicant and Respondent. In these circumstances that agreement is a complete answer to the Applicant’s claim for unfair dismissal and the unfair dismissal application therefore has no reasonable prospect of success.
Section 587 of the Fair Work Act 2009 (FW Act) provides the Commission with the power to dismiss an application including where it has no reasonable prospects of success. For this reason I have determined that the application should be dismissed pursuant to s.587(1)(c) and an order[7] to this effect will be issued shortly.
COMMISSIONER
Appearances:
A Diacoumis on her own behalf.
T. Crumpton of Crumpton Lawyers for the Respondent.
3 August 2022.
Melbourne, by telephone.
[1] The Applicant and her witness used “mediator” when referring to the conciliator. To avoid confusion, I have used the term “conciliator” for consistency across the Decision
[2] This is accepted as being an expression of a desire to go to arbitration in the Commission
[3] See Australian Postal Corporation v Gorman [2011] FCA 975 at [31], [33]
[4] Ibid at [36]
[5] Masters v Cameron [1954] HCA 2 at [9]
[6] Singh v Sydney Trains [2017] FWCFB 4562 at [53] citing Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986( 40 NSWLR 622
[7] PR744698
Printed by authority of the Commonwealth Government Printer
<PR744697>
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