Barbara Catto v Inglewood & District Health Service

[2013] FWC 1764

[2013] FWC 1764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barbara Catto
v
Inglewood & District Health Service
(U2012/16188)

COMMISSIONER BISSETT MELBOURNE, 25 MARCH 2013

s.394 - application for relief from unfair dismissal - application to have matter dismissed.

[1] Ms Barbara Catto (the Applicant) commenced employment with Inglewood & District Health Service (Inglewood or the Respondent) on 12 February 2001. Her employment ended on 28 November 2012. Ms Catto has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The Respondent says that Ms Catto was made redundant.

[3] The matter was listed before me to deal with the jurisdictional matter (that the Applicant’s dismissal was a genuine redundancy) and, if it was not, to determine the merits of the application.

[4] At the conclusion of the Applicant’s case Mr Harrington for the Respondent made an application pursuant to s.587 of the Act that the application be dismissed on the grounds that the Applicant entered into a binding agreement that her employment would cease, even though the written terms of the agreement were not executed.

[5] On considering the submissions of Mr Harrington and Ms Pierce for the Applicant I rejected the application but granted liberty for the Respondent to apply again once the evidence of the Respondent had been dealt with.

[6] At the conclusion of the day’s proceedings and following receipt of the evidence of Mr Parker for the Respondent, Mr Harrington again made application that I dismiss the application for unfair dismissal under s.587 of the Act.

[7] I reserved my decision on that matter. This decision deals with that application only.

The legislation

[8] Section 587 of the Act states:

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Background

[9] The following information is set out as background only. Whilst the information derives from the statements of Ms Catto and Mr Parker it is not necessary, for this matter, for me to make specific findings on these aspects.

[10] The Applicant was involved in an incident with another employee of the Respondent on 20 September 2012. This was reported to the acting CEO, Leanne Winning. The following day the Applicant says she provided a note about the incident to Mr Mike Parker, the CEO. On 24 September the Applicant received advice from Mr Parker that he would be investigating the matter. On 26 September the Applicant spoke to Mr Parker with respect to some Facebook posts made by the other employee. On 28 September the Applicant again met with Mr Parker.

[11] A series of meeting between the Applicant and Mr Parker were then held on 1, 2 and 4 October 2012.

[12] On 10 October 2012 the Applicant received an email form Mr Parker suggesting mediation with the other employee involved in the incident and subject to the complaint of the Applicant. The Applicant rejected the first proposed mediator as she said she knew him and he had no HR experience. On 25 October she was advised by Mr Parker of an alternative mediator. On 1 November 2012 the Applicant advised Mr Parker that she did not accept the proposed second mediator.

[13] On 29 October 2012 the Applicant gave a document to the Chair of the Hospital Board setting out her concerns with how her complaint was being handled.

[14] On 1 November 2012 the Applicant received a letter from Mr Parker asking that she attend a meeting on 9 November 2012 to discuss ways of resolving the complaint she had made including a consideration of mediation. The meeting was subsequently held on 7 November 2012, was attended by Ms Catto and Mr Bradford, her union representative, Mr Parker and Mr McCullough from the VHIA.

The meeting of 7 November 2012

[15] Although there is general agreement on what occurred at the meeting of 7 November 2012 it is necessary to set out the evidence in some detail.

[16] Ms Catto’s evidence is that she went to the meeting on 7 November 2012 with the idea of exploring if she could get a redundancy package and leave her employment. 1 At her request Mr Bradford explored this idea at the meeting.2 She says that Mr Bradford did the talking with Mr Parker and Mr McCullough3 and she was out of the room. She also says that Mr Bradford would come and go relaying information to her.

[17] Mr Parker says that at the commencement of the meeting Mr Bradford indicated Ms Catto wished to leave the hospital. Mr Parker and Mr McCullough then had a private discussion about the structure of a departure package. They then spoke to Mr Bradford and advised that they were willing to give the Applicant her entitlements and 20 weeks redundancy pay and she would need to retract her letter to the Board. Mr Bradford said she was entitled to 22 weeks. Mr Parker and Mr McCullough agreed to the additional weeks being included in the package. Mr Parker says Ms Catto then came back into the room and Mr McCullough read out the terms of the settlement. At the end of the meeting the parties shook hands. 4 Mr McCullough then advised that the release would be drawn up and sent to Ms Catto to be signed and returned by 4.00pm on 9 November 2012.5

[18] The evidence of Ms Catto is that at the end of the meeting all four people came together and Mr McCullough said words to the effect that, ‘“We’ve reached agreement or position and I just want to read it out to the parties.”‘ 6 The Applicant gives the following evidence about what Mr McCullough then said:

One element of those terms that was repeated was the amount of severance pay, the weeks as it were, 22 weeks?---Yes.

That you would be paid your entitlements, your statutory entitlements?---Yes.

That what Mr Parker had asked for, that there would be a retraction of the statement or letter to the board, that was repeated?---Yes.

...

There was a reference also that a statement of service would be provided; do you recall Mr McCullough saying that to you?---Yes.

There was a reference also that neither party would disparage the other party?---Yes.

That there would be a release from all claims?---Yes.

That there would be confidentiality?---Yes.

And also Mr McCullough read out words to the following effect, “Further to the meeting with Mike Parker on 7 November 2012 with my union representative, my concerns have been addressed and I retract the document”. Do you recall him reading out some - this is Mr McCullough - words to that effect?---But I wasn’t happy about retracting that comment.

Yes but neither - Mr Bradford didn’t say, “No, that’s not right” at the meeting, did he?---Mr Bradford said at the meeting that it would - that the letter was already there and how can we retract it.

Yes, but there was something read out to you at the end requiring a retraction wasn’t there?---Yes.

And after Mr McCullough stopped speaking you didn’t jump up and say, “That’s not a deal. That’s not the agreement. I don’t agree with any of that”. You didn’t say any of those things, did you?---No, but it was very quick and the time was - it all happened within - well, it all happened within an hour.

Mr Bradford didn’t jump up and say, “No deal. Not right. That’s not correct”, did he?---No, but he did have discussions in the room - out of the room when I wasn’t there.

Sure he did. At the end of this meeting after this reading out of the terms Mr McCullough then raised the issue of a release agreement or a document that he would draft up and provide to Mr Bradford. Do you remember him saying that?---Yes.

[19] At 4.000pm on 7 November 2012 the Applicant returned to the workplace and removed her personal belongings.

[20] On the following day, the Applicant’s evidence is that she had concerns at what she had done but agrees that she had entered into an agreement to cease her employment and take a redundancy package, although she says she was under a lot of stress. 7

[21] The Applicant confirms that she was under no illusion that at the end of the meeting of 7 November that she had reached an agreement ‘subject to her signing it’. 8

[22] At 4.00pm that day the Applicant says she returned to the workplace and collected her personal belongings.

[23] The Applicant did not sign the Agreement which was drafted following the meeting.

Events following 7 November 2012

[24] On 9 November 2012 the Applicant returned to the workplace and handed a sick leave certificate to Mr Parker. Mr Parker’s evidence is that he was on the phone at that time. Whilst the Applicant disputes this she does agree that Mr Parker did have two people in the office with him. There were no words spoken between the Applicant and Mr Parker.

[25] Mr Parker says that on 8 November 2012 Mr Harrick contacted him and told him that the Applicant was returning to work. Mr Parker’s evidence is that he said to Mr Harrick that she could not return and that Mr Harrick replied that she could. 9 Mr Parker says Mr Harrick did not raise any issues with respect to the agreement reached on 7 November 2012 with him.

[26] On 14 November 2012 the Applicant returned to the workplace. She was given a pass and swipe card, Mr Parker says it was a less confrontational way of dealing with the situation. 10 Later that day Mr Parker gave the Applicant a letter11 which states, in part:

I note that you have presented for work despite the fact that your position is redundant. I refer to our agreement negotiated last week and the Release issued at your request. This Release negotiated between yourself, the HSU and the Health Service is based on your position being redundant.

[27] That letter then sought to arrange a meeting with the Applicant.

[28] What followed from this point, as provided in evidence from the parties, does not go to the matter I must decide and is therefore not set out here.

Did Catto enter into a binding agreement?

[29] It is necessary for me to determine if Ms Catto entered into a binding agreement on 7 November 2012.

[30] In Rebecca Tomas v Symbion Health 12 (Symbion) Gooley C was required to determine if an agreement reached in conciliation but subsequently not signed was a binding agreement such that the application for relief from unfair dismissal should be dismissed. In that matter the Applicant was represented during the conciliation process, the parties agreed to the terms of the agreement and the Applicant then changed her mind and indicated at a later date that she would not sign the agreement.

[31] Gooley C observed that the Applicant’s representative had authority to appear for her. Ultimately she found that:

The remaining issue is whether a binding agreement was made on 1 March 2011. I do not accept that because the agreement made on 1 March 2011 was not signed by Ms Tomas she was not bound by the agreement. There is no legislative requirement or principle of contract law that says that because the agreement made on the 1 March 2011 was not signed it is not enforceable.

In Masters v Cameron the High Court held that when parties reach agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, that the case may belong to any of three classes:

(1) the parties have agreed on all terms and intend to be immediately bound to perform those terms “but at the same time propose to have the terms of their bargain restated in a form which will be fuller or more precise but not different in effect; or

(2) the parties have agreed on all terms and intend no departure from or addition to that which there 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”; or

(3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.”

In the first two classes the High Court held that there was a binding contract.

I find in this case that the parties made an agreement as described by the High Court in example (2) above. The parties intended and did settle Ms Tomas’s claim for unfair dismissal at the conciliation conference on the terms described by the Respondent. 13

[footnotes omitted]

[32] The circumstances that confront me here are very similar to those considered in Symbion. In this case the Applicant was represented by Mr Bradford. Mr Bradford put a proposal at the meeting on 7 November 2012 on instruction from Ms Catto. He acted on her behalf in the negotiations and regularly sought instructions from her, including that she should receive 22 weeks’ and not 20 weeks’ redundancy pay.

[33] At the conclusion of the meeting the terms of the agreement were articulated by Mr McCullough. No one indicated that the terms were not as agreed. When the agreement was drafted the next day Mr Bradford indicated that it reflected the agreement reached the previous day. This is a case where the parties have agreed on all of the terms of the agreement. They were to be put in a document the next day that was then to be signed.

[34] Ms Catto agrees that she reached an agreement on 7 November 2012. Although she says that she was under stress she was the one, by instructions to her representative, who put the basis of a separation on the table. It is Mr Parker’s evidence and I accept that the original purpose of the meeting was to discuss how mediation between Ms Catto and another employee might be arranged. There is nothing that indicates that Ms Catto was incapable of making the decision as to the agreement. In this respect Inote that Mr Bradford, Ms Catto’s representative at the meeting was not called to give evidence.

[35] Ms Catto says that she would never sign anything without getting legal and financial advice. Whilst I do not make any finding on the truthfulness or otherwise of this statement, I do find that if such advice was so crucial to her decision making process it is astounding that she did not say at the conclusion of the meeting, something to the effect that, it all sounded good but she had to get some advice before she finally agreed. But she did not. As she says herself, she agreed to the terms at the end of the meeting.

[36] That the terms finally written may have included matters not discussed at the meeting does not make the agreement reached at the meeting invalid. This much is clear from the decision Zoiti-Licastro v Australian Taxation Office 14 where a Full bench of the AIRC found that:

It is clear that the settlement agreement drafted by the ATO’s solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant’s focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005. 15

[37] Ms Catto may have some disagreement (although none is specifically raised) about what has been written in the document intended to reflect the agreement reached but that does not alter the fact that she reached an agreement on 7 November 2012.

[38] Ms Catto did return to work on the 14 November 2012. However there is nothing to indicate that the Respondent accepted her return to work and repudiation of their agreement.

[39] In all of the circumstances I find that Ms Catto did reach an agreement with the Respondent and that this agreement was binding on her and the Respondent. It is the second type of agreement described above and is intended to settle all matters arising from her employment and the termination of her employment with the Respondent.

Powers to dismiss the application

[40] Section 587 of the Act gives the Commission the power to dismiss an application. The grounds for dismissal are not restricted to the circumstances set out in paragraphs (a), (b) or (c). I therefore have the power to dismiss an application for unfair dismissal in circumstances where I find that the Applicant and Respondent have reached a binding agreement on the circumstances of the end of the Applicant’s employment.

Conclusion

[41] For the reasons outlined above I find that Ms Catto entered into a binding agreement with the Respondent as to the terms of her departure from her employment with the Respondent. This agreement provides grounds for me to dismiss Ms Catto’s application for unfair dismissal.

[42] I have therefore decided that Ms Catto’s application for unfair dismissal be dismissed. An order to this effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

C. Pierce of Counsel,for the Applicant.

N. Harrington of Counsel,for the Respondent.

Hearing details:

2013.

Melbourne:

5 March.

 1   Transcript PN124.

 2   Transcript PN142-3.

 3   Exhibit A1, paragraph 78.

 4   Transcript PN876.

 5   Exhibit R1, paragraphs 44-52.

 6   Transcript PN165.

 7   PN200.

 8   PN191.

 9   Transcript PN920. See also PN929.

 10   Transcript PN772.

 11   Exhibit A3. Note that while the date on the letter is 15 October 2012 all parties agree that it is the letter of 14 November 2012.

 12   [2011] FWA 5458.

 13   [2011] FWA 5458, [43-46].

 14   PR967544 (25 January 2006).

 15   PR967544 (25 January 2006), [12].

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