Beau Tully v Brightmark Group Pty Ltd
[2022] FWC 1345
•31 MAY 2022
| [2022] FWC 1345 |
| FAIR WORK COMMISSION |
| DECISION |
Application for an unfair dismissal remedy
s.394—Unfair dismissal
Beau Tully
v
Brightmark Group Pty Ltd
(U2021/12269)
| COMMISSIONER BISSETT | MELBOURNE, 31 MAY 2022 |
Application for an unfair dismissal remedy – matter settled at conciliation – request to reopen – whether a binding agreement existed.
On 21 December 2021 Mr Beau Tully made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking a remedy for unfair dismissal. Mr Tully indicated on his application that he was represented by Mr Gary Pinchen of A Whole New Approach (AWNA). Mr Tully was employed by Brightmark Group Pty Ltd (Brightmark) and his employment was terminated on 3 December 2021.
The application of Mr Tully was subject to conciliation on 8 February 2022 where the matter apparently settled. A letter to this effect was sent by the conciliator to the parties on 9 February 2022.
On 9 March 2022 the Commission received an application from Brightmark that the Commission dismiss the unfair dismissal application of Mr Tully pursuant to s.399A(1)(c) of the FW Act on the grounds that Mr Tully had unreasonably failed to discontinue proceedings after a settlement had been reached or, in the alternative, the Commission should dismiss the application pursuant to s.587 of the FW Act because the application has no reasonable prospects of success. In its application Brightmark set out a chronology of events as it understood them leading up to the filing of its application.
On 9 March 2022 the Commission received a notice of a representative ceasing to act from AWNA in relation to its representation of Mr Tully.
On receipt of the application of Brightmark my chambers advised Mr Tully that I was considering granting the application and sought his views on the application.
On 30 March 2022 Mr Tully emailed the Commission and set out the reasons he had not engaged with AMNA or Brightmark in relation to the written terms of settlement of his application.
I took Mr Tully’s email as contesting that he had reached an agreement with Brightmark. As I result I issued directions in which I required to parties to file submissions in relation to the application of Brightmark.
Following receipt of submissions from the parties each party agreed that I should determine the question of whether a settlement agreement had been reached between the parties, and hence whether Brightmark’s application should be granted, on the basis of the material filed. For this reason, no hearing was held in relation to the application of Brightmark.
Submissions
Brightmark submits that the following course of events occurred:
· Following conciliation on 8 February 2022 at which an agreement was purportedly reached, Brightmark’s representative (Employsure) sent the Deed of Release to AWNA (Mr Tully’s representative) by email on 11 February 2022;
· On 18 February 2022 Brightmark’s representative sent a follow up email to AWNA as to when the signed Deed might be returned. No reply was received from AWNA;
· On 22 February Brightmark’s representative telephoned AWNA. On being told the primary contact for the file was not available a message was left requesting a call back. AWNA did not return the phone call;
· On 23 February 2022 Brightmark’s representative telephoned AWNA. The call went to voicemail and a message again left requesting a call back. No return call was made;
· On 24 February 2022 Brightmark’s representative again called AWNA and left a message with the receptionist to be called back. Again, AWNA did not return the call;
· On 28 February 2022 Brightmark’s representative again called AWNA and this time spoke to Mr Tully’s representative. The representative said he would follow the matter up with Mr Tully but, at the time of the making its application to the Commission had not heard from Mr Tully’s representative.[1]
Brightmark submits that, at the conciliation on 8 February 2022, the parties reached a binding settlement agreement. The terms of settlement were:
· A statement of service;
· Payment of the equivalent of 3 weeks’ wages less tax and within 14 days of Mr Tully signing the Deed of release;
· Mutual release provisions with limited exemptions;
· Mutual confidentiality and mutual non-disparagement.
Despite the provision of the written terms as agreed, and follow up attempts, Brightmark did not receive the signed terms from Mr Tully.
Brightmark submits that the parties reached a clear binding agreement at conciliation within the meaning of the first or second category as described in Masters v Cameron.[2]
Brightmark therefore submits that, as the parties did reach a binding settlement agreement and Mr Tully failed to sign the terms, it is appropriate that the application be dismissed pursuant to s.399A(1)(c) of the FW Act.
Whether a binding settlement agreement was reached is a matter of fact to be determined by the Commission.
That such an agreement was reached in the matter before me is supported by the correspondence from the conciliator to the parties on 9 February 2022 confirming the matter had settled. Brightmark rejects Mr Tully’s claim that he did not reach an agreement because he was “forced” by his representative to settle the matter. It says that Mr Tully put himself forward in conciliation through his representative and Brightmark was entitled to take its acceptance of Mr Tully’s final offer as a finalised agreement. If Mr Tully was not satisfied with the conciliation he could have indicated at conciliation that he did not agree with the settlement and/or dismissed his representative but he did neither
Relying on the decisions in Australian Postal Corporation v Gorman[3] and Thinagaran Segran v Certis Security Australia (Victoria) Pty Ltd T/A BRI Security[4] Brightmark submits, in the alternative, that the Commission should dismiss the application pursuant to s.587 of the FW Act.
Mr Tully says that he wishes to have his application for remedy for unfair dismissal heard.
Mr Tully appears to agree, in his correspondence to the Commission on 30 March 2022, that he did not respond to an attempt by AWNA to contact him as he says, in that correspondence, that “I apologise for not responding to A Whole New Approach…” Mr Tully also submits that he believes that “the agreement made at conciliation was forced” on him by his representative from AWNA. Mr Tully also submits that his representative was abusive when Mr Tully expressed his dissatisfaction at his performance and wished to go to hearing.
In his correspondence to the Commission of 30 March 2022 Mr Tully alludes to his diagnosed medical condition. He also said that, in discussions with his representative prior to conciliation, his representative yelled at him. He says he felt let down by his representative who he did not believe gave him appropriate advice or represented him fairly in the conciliation. While he does not rely on that condition, he submits that he found it difficult to understand what was occurring in conciliation.
Mr Tully also complains that he received an email for Brightmark’s representative seeking payment of its costs but says it was Brightmark’s decision to engage its representative and not Mr Tully’s responsibility.
Consideration
Mr Tully does not dispute that an agreement was reached between the parties to settle his application in relation to his dismissal at the conciliation conference conducted on 8 February 2022. Rather, it is how that agreement was reached that is of concern to him. That an agreement was reached is supported by the Commission’s correspondence to the parties following the conciliation. There is no evidence or submissions to the contrary.
In both his response to the initial inquiry of the Commission following receipt of Brightmark’s application and in submissions filed in accordance with the directions issued by my chambers, Mr Tully, while not disputing that an agreement was reached at conciliation, made a number of complaints in respect to his representation by AWNA. This included that he felt forced into the agreement by his representative and that his representative did not listen to what he, Mr Tully, wanted and failed to explore options with him.
On reading Mr Tully’s submissions it is apparent that he has a grievance in relation to underpayments of wages he says are owed to him. It appears that these are matters he is pursuing (appropriately) through the Fair Work Ombudsman. As to his medical condition Mr Tully does not suggest that this were such that he could not participate in the conciliation conference. Further, he did not indicate in his application that any special assistance or note should be taken of any medical condition during proceedings.
Mr Tully felt let down by AWNA. However, this is not a basis on which he can therefore claim that he did not reach a binding settlement agreement with Brightmark at the conciliation conference of 8 February 2022. Ignoring correspondence in relation to finalising the written agreement following the conciliation does not, and cannot, change what happened at conciliation.
This is not to suggest that Mr Tully does not have a legitimate grievance against his representative (although I stress I make no finding on this) but that is not a matter that can be resolved at the Commission. Should Mr Tully consider that he was coerced or forced into the agreement then he must seek to set aside the agreement through the appropriate court.
In the circumstances I am satisfied that Mr Tully entered into a binding settlement agreement through his representative with Brightmark at the conciliation held in the Commission on 8 February 2022. The agreement reached was of the first or second kind identified in Masters v Cameron in that it was “one in which 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.”
Section 399A of the FW Act states:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a)failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b)failed to comply with a direction or order of the FWC relating to the application; or
(c)failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
To the extent that Brightmark has applied to have the application for unfair dismissal made by Mr Tully dismissed pursuant to s.399A of the FW Act, I note that the written agreement sent to Mr Tully required that he discontinue his application for unfair dismissal “within 48 hours” of Brightmark providing the settlement amount. However, I have no evidence that Brightmark has provided payment of the settlement amount to Mr Tully. I am not satisfied that Mr Tully has therefore unreasonably failed to discontinue his application following the settlement of the matter. There is also no evidence that Brightmark have proposed to Mr Tully that he should discontinue his application given a settlement has been reached or has paid the settlement amount such that Mr Tully’s obligation is enlivened.
Brightmark’s application with respect to s.399A is, to this extent, misconceived and is, therefore, dismissed.
Having found however that Mr Tully did reach a settlement agreement with Brightmark I am satisfied that his application for remedy for unfair dismissal has no reasonable prospect of success.
In Australian Postal Corporation v Gorman[5] Besanko J said
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.
That is, having reached an agreement to settle the unfair dismissal application, the settlement agreement has brought the unfair dismissal application to an end.
Section 587 of the FW 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.
The power of the Commission to dismiss an application is wide and is not restricted to the circumstances in s.587(1). I am therefore satisfied that I have the power to dismiss Mr Tully’s application for a remedy for unfair dismissal on the grounds that an agreement to settle that claim was made between Mr Tully and Brightmark.
In dismissing his application for unfair dismissal I note that Mr Tully has the ability to access the settlement amount specified in the settlement agreement. He can do so by signing the agreement. In making this observation I note that the settlement agreement sent to Mr Tully does not appear to stop him pursuing wages he considers owing to him under the Cleaning Services Award 2010 and Cleaning Services Award 2020.
As set out above I do acknowledge that Mr Tully was dissatisfied with his representative. This does not undo the agreement reached and on this I note that Mr Tully did not express such dissatisfaction nor did he object to the agreement during the conciliation.
In reaching my decision I have not had regard to Mr Tully’s complaint of Brightmark threat to claim costs in relation to its representation. It is not relevant to the matter that I need to decide here.
For the reasons given above I dismiss that application of Mr Tully pursuant to s.587(1) of the FW Act on the grounds that he has reached a binding settlement agreement in relation to his claim for unfair dismissal. An order[6] to this effect will be issued with this decision.
COMMISSIONER
[1] To the extent claims are made in relation to the conduct of AWNA, no submissions were sought from that organisation. Its involvement is not more than a statement of the claims of the various parties. No findings are made in relation to AWNA or any of its representatives.
[2] (1951) 91 CLR 353
[3] [2011] FCA 975
[4] [2020] FWC 4192
[5] Australian Postal Corporation v Gorman [2011] FCA 975 at [31]
[6] PR742104
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