Bartosz Jacek Marcinkowski v Woolworths Limited

[2014] FWC 8432

[2014] FWC 8432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bartosz Jacek Marcinkowski
v
Woolworths Limited
(U2014/7199)

DEPUTY PRESIDENT MCCARTHY PERTH, 26 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Bartosz Marcinkowski (the Applicant) lodged an Unfair Dismissal Application regarding his dismissal from employment with Woolworths Limited (the Respondent).

[2] A Notice of Listing for what was described as a Conciliation before a Fair Work Commission Conciliator was issued to be conducted on 21 July 2014.

[3] The matter was allocated to me on 4 August 2014. An undated document with the title “Conciliator Report” was on the file I received which indicated the following:

● a Conciliation had been conducted on 21 July 2014;
● the outcome was that the matter was “not settled”;
● that there were no jurisdictional issues; and
● a note under the heading “Other Administrative issues’ that “Note: the Respondent objects to this matter being listed for arbitration because there was an agreement subject to a three days cooling off period [COP] at the conciliation, and the Applicant changed his mind in the COP and asked that the matter be listed for arbitration. Please see the file note of 31/7 with the correspondence attached.”

[4] The file note referred to in the previous paragraph stated:

“this matter settled subject to a cooling off period, during which the A advised that he did not want to continue with the COP and wanted the matter listed for arbitration. the respondent objects to this, and has sent a letter to the conciliator explaining why, to which the conciliator advised that this issue would need to be dealt with by the member of the Commission to whom this matter is allocated. I have attached the relevant correspondence to this file note.”

[5] The correspondence referred to in the previous paragraph included:

● an email from the Applicant to the Conciliator (dated and timed Thu 24/07/2014 3:44 PM) which stated that “After seeking legal advice, I would like to forfeit the offer and like to progress to the arbitrators”.

● a letter from the Respondent dated 31 July 2014 (the 31 July letter) (signed by Peta Hartley State HR manger - WA Woolworths) stating “It is the view of Woolworths [the Respondent] that the matter should not need to proceed to arbitration on the basis that the matter had been settled by mutual agreement.” and “I advise that Woolworths does not accept Bart Marcinkowski’s [the Applicant’s] purported rejection of the settlement it believes was reached during the conciliation on the 21st of July 2014.”

[6] An letter was sent to the Applicant and to the Respondent (the parties) with a signature block “Fair Work Commission” but with no identification of the author nor a signature, stating amongst other things that:

“...

Further to above matter, I confirm that I have referred the application for arbitration before a Member of the Fair Work Commission (the Commission). I have noted the objection of the respondent to this matter proceeding to arbitration on the file.

...

If you are the respondent and you have an objection to the application proceeding, you are required to lodge a Form F4 detailing the grounds of the objection, unless the objection was previously recorded in the completed Form F3, “Employer’s Response to Application for Unfair Dismissal Remedy.

Generally, any correspondence or documents sent to Commission must also be sent to the other party. The Commission may forward your correspondence and documents to the other party. If you are concerned about correspondence or a document being forwarded by the Commission, you should contact the Commission before sending.” (original emphasis)

[7] No submissions were made regarding the validity of Conciliation or the authority of the Conciliator to conduct it. Presumably either the parties voluntarily agreed to participate or the relevant delegations under the Fair Work Act 2009 (the FW Act) have been made that provided the Conciliator with the authority to conduct the proceeding.

[8] The issue that I dealt with was in effect a request to dismiss the application because of the asserted agreement or settlement reached during the Conciliation.

[9] I had no regard to the presumptuousness in the letter to the parties on 1 August 2014 that I would conduct a hearing however I did decide to conduct a hearing as I considered there would be contested facts regarding what had been agreed at the Conciliation. That hearing was conducted on 31 October 2014.

[10] Ms Peta Hartley gave evidence. She stated that she attended the Conciliation (which was conducted by telephone) and the parties reached agreement as to a settlement. She outlined what those terms were. She appeared to state that following the reaching of that agreement that the Conciliator then indicated that there would be a three day cooling off period. Ms Hartley however later stated that the agreement made included a condition that there would be a three day cooling off period.

[11] Ms Marie Covino, a HR specialist, for the Respondent also gave evidence. She also attended the Conciliation. Her evidence was consistent with that of Ms Hartley, including that the agreement made was conditional upon the parties having a three day cooling off period.

[12] Both Ms Hartley and Ms Coivno gave evidence that the so-called cooling off period was for three days but neither evidenced anything expressly agreed or stated as to when that period would start nor any express time as to when it would end. Neither Ms Hartley nor Ms Covino gave evidence about the cooling off condition being raised with them prior to the agreement being affirmed by the parties with the Conciliator. There is also no evidence that the Respondent raised, nor canvassed the cooling off period either with the Conciliator or with the Applicant.

[13] The Applicant gave evidence. He stated that the agreement was made and it was conditional upon a three day cooling off period. He recalled that the Conciliator raised the cooling off period with him separately.

[14] The Applicant also referred to and tendered a letter sent to him dated 21 July 2014. The letter was unsigned with the generic Signature block of “Fair Work Commission”. No complaint was made of any uncertainty about who had written the letter and who the first person referred to in the letter was. The letter stated amongst other things that:

“...

Thank you for your participation in the conciliation in the above matter. I confirm that you reached a settlement agreement and I confirm that the terms of settlement are to be sent out by [highlighting in original] the respondent.

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 the parties by Thursday, 24 July 2014 the matter is resolved in the terms attached and the file will be closed.

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 matter for arbitration before a Member of the Fair Work Commission (the Commission) ...” (original emphasis)

[15] The letter also states that:

“Generally, any correspondence or documents sent to the Commission must also be sent to the other party. The Commission may forward your correspondence and documents to the other party. If you are concerned about correspondence or a document being forwarded by the Commission, you should contact the Commission before sending it.”

[16] The Applicant evidenced that the Conciliator did state to the parties in the conclusion that the following day (22 July 2014) would be the first day of the three day cooling off period. Both from what he says was stated in the Conciliation and from the content of the letter of 22 July 2014 he believed he had until 24 July 2014 to in effect confirm his agreement.

[17] I therefore find that there was no agreement between the parties to settle the matter. The matter will be reallocated in accordance with allocation procedures.

DEPUTY PRESIDENT

Appearances:

B Marcinkowski in person.

P Hartley of the Respondent.

Hearing details:

2014.

Perth:

October, 31.

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