Belinda Carroll v Huon Valley Takeaway
[2022] FWC 2120
•10 AUGUST 2022
| [2022] FWC 2120 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Belinda Carroll
v
Huon Valley Takeaway
(U2022/6200)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 10 AUGUST 2022 |
Application under s 399A – unreasonable refusal to discontinue after settlement agreement reached – unreasonable failure to attend conferences – unfair dismissal application dismissed
Ms Belinda Carroll lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The matter was listed for a telephone mention at 10.00am on 3 August 2022. Ms Carroll did not attend. At the mention, the representative of Huon Valley Takeaway (respondent), Mr Scott Hoggett, applied under s 399A of the Act for Ms Carroll’s application to be dismissed, on the ground that she had unreasonably failed to attend a conference or hearing before the Commission (s 399A(1)(a)), and because she had unreasonably failed to discontinue her matter after a settlement agreement was reached (s 399A(1)(c)) pursuant to which he paid her $10,000.
On 3 August 2022, I caused correspondence to be sent to Ms Carroll, in which I advised her that during the mention, which she had failed to attend, the respondent had made an application under s 399A on the grounds referred to above. I directed Ms Carroll to file a written explanation as to why she did not attend the mention, and why her application should not now be dismissed under s 399A(1)(a) or s 399A(1)(c).
In written submissions dated 7 and 8 August 2022, Ms Carroll stated that she wished to pursue her unfair dismissal claim, and that the reason she had failed to attend the telephone mention was that she had a new telephone which had been blocking unidentified numbers and spam, and that the call from my associate to commence the mention had been blocked. Ms Carroll acknowledged that the respondent had paid her $10,000 but said that Mr Hoggett had misconstrued what the payment was for. Ms Carroll said that she had requested the payment in order to cover her claim for underpayment of wages, specifically in relation to penalty rates for overtime, weekend work and public holidays. Ms Carroll said that she had told Mr Hoggett that she would ‘notify the relevant bodies that the underpayments had been settled’, but that ‘the unfair dismissal and bullying would still stand.’
I listed the respondent’s s 399A application for hearing on 9 August 2022. Ms Carroll gave evidence in which she elaborated on the matters referred to in her written submissions. Ms Carroll said that she had been expecting a telephone call from the Commission to commence the mention at 10.00am on 3 August 2022 but did not receive a call. She then went to the Telstra shop to see what was wrong with her telephone and found out that the default settings had blocked the call. Ms Carroll said that she had also failed to attend an earlier telephone conciliation conference with a conciliator of the Commission, and that the reason for this had been her poor mental health.
Ms Carroll’s evidence was that Mr Hoggett had indeed paid her $10,000, but that she had explained to him that the payment only related to a settlement of her underpayment claim. Ms Carroll said that she believed this would be confirmed by her text correspondence with Mr Hoggett.
Mr Hoggett produced copies of text messages between Ms Carroll and himself (the vast majority were sent from Ms Carroll to him) between 22 May 2022 and 22 June 2022. This correspondence shows that Ms Carroll told Mr Hoggett that she believed that she had been underpaid and unfairly dismissed, and that Ms Carroll made various requests for monetary payments. The following texts are significant:
· On 6 June 2022, Ms Carroll sent a text to Mr Hoggett, in which she stated: ‘The gross underpayment of wages including penalty rates … is in excess of $15,000’. Later in the same text Ms Carroll stated: ‘I request another $10,000 for the unfair dismissal, and the bullying by other staff, along with other issues this is also to be paid directly into my bank account at your soonest possible convenience … the matter will then be closed, dealt with and never spoken of again. I’d rather put it in the past so we can move forward.’ Mr Hoggett did not reply to this offer.
· On 20 June 2022, Ms Carroll texted the following to Mr Hoggett: ‘As you are probably aware I have 2 separate cases under enquiry atm, one with fair work commission for unfair dismissal … And another with fair work ombudsman regarding the payment issues.’ She then stated that her rent was due and asked Mr Hoggett to forward her ‘$400 off outstanding amounts’. She said that she was ‘tired of waiting for [a] response so I just have to push ahead with the legal side of things …’
· On 21 June 2022, Ms Carroll texted Mr Hoggett: ‘You turned down my first offer of $25K plus my job .. My second offer is $20k ... If you want to accept let me asap [sic] and I’ll sort out things my side and supply you with the evidence …’ The same day, Mr Hoggett replied that the maximum he could afford was $10,000.
· Later that day, Ms Carroll replied, stating that her final offer was $15,000, otherwise he could ‘take things up further with fairwork’. She then said: ‘If you would like to accept my final offer, you can deposit the money directly into my bank account today at which point I shall email fairwork and ask them to dismiss the matter as being resolved.’ Mr Hoggett replied that he could not afford that amount.
· At 4:57pm on 21 June 2022, Ms Carroll texted Mr Hoggett stating: ‘I would now like to accept your offer of 10K.’ She said: ‘If your [sic] still happy to settle, you can do so by bank transfer at which point I’ll notify the relevant bodies that the matter is now sorted, I’ll supply you with copies of the emails.’ Mr Hoggett replied that he would transfer the money the next day or the day after. He said that he had enjoyed working with Ms Carroll and that he was sorry that things had ended as they did.
Ms Carroll’s texts to Mr Hoggett did not say or suggest that she was only settling her underpayment claim and not her unfair dismissal application. On the contrary, the plain meaning of Ms Carroll’s texts was that she would settle both matters in exchange for a payment. The only question was what that payment would be. Ms Carroll was very clear that she had two matters ‘under enquiry’. One concerned underpayments. The other was her unfair dismissal application. Ms Carroll’s first offer sought a payment of $25,000, which comprised $15,000 for the underpayment claim and ‘another $10,000’ for the unfair dismissal. Mr Hoggett did not accept this. Ms Carroll then made a second offer, which sought a payment of $20,000: this was clearly an offer referable to the settlement of both matters. She did not say that the second offer would settle only the underpayment claim. All that changed was the proposed settlement amount. Mr Hoggett rejected this offer. Ms Carroll’s third offer of $15,000, and Mr Hoggett’s counteroffer of $10,000, related to the same subject matter as the previous offers: they would settle the matters referred to in Ms Carroll’s text of 20 June 2022.
Further, Ms Carroll told Mr Hoggett that she would ‘notify the relevant bodies that the matter is now sorted’. The bodies in question were plainly the Commission and the Ombudsman. Ms Carroll conceded that she had not notified either body of anything. She said that she must have accidentally typed ‘bodies’ instead of body. I do not accept this. It is obvious from her texts that Ms Carroll was offering to settle both matters. There is nothing in the correspondence suggesting that only the underpayments were being settled.
Ms Carroll said that she might have told Mr Hoggett on the telephone that the payment would not settle the unfair dismissal claim. But Mr Hoggett’s evidence was very clear and convincing: Ms Carroll did not say to him that the payment would not settle the unfair dismissal claim. Mr Hoggett said that it was only on 21 July 2022, well after he had made the payment on 23 June 2022, that Ms Carroll first suggested to him that the $10,000 had only settled the underpayments claim. I accept Mr Hoggett’s evidence.
Ms Carroll raised two legal claims against Mr Hoggett’s business. One was that she had been underpaid. The other was that she had been unfairly dismissed. The parties negotiated a settlement of those claims in exchange for the payment of money. I find that Ms Carroll and Mr Hoggett agreed that Ms Carroll would settle her claims against Mr Hoggett’s business in exchange for a payment of $10,000. This included her unfair dismissal application.
Mr Hoggett transferred the agreed sum into Ms Carroll’s bank account. By doing so, he complied with his obligation under the settlement agreement. But Ms Carroll did not comply with her obligation to notify the relevant authorities that the matter had been settled. What this required, in so far as her unfair dismissal application was concerned, was for Ms Carroll to file a notice of discontinuance. Because she had been paid the settlement sum, there was no reasonable basis upon which Ms Carroll could refuse to do so. I am satisfied that Ms Carroll unreasonably failed to discontinue her matter after a settlement agreement was reached. As I am satisfied of the matter in s 399A(1)(c), I have a discretion to dismiss her application. I consider it appropriate in all the circumstances to do so.
Ms Carroll said that she considered her position in this matter to be the morally correct one and that she ought to be allowed to pursue her unfair dismissal claim. I disagree. People must honour their agreements. Ms Carroll agreed to settle her claims in exchange for payment of a substantial sum.
Had I not dismissed the application under s 399A(1)(c), I would have done so under s 399A(1)(a). I am satisfied that Ms Carroll did not attend a conference relating to her unfair dismissal application, namely the mention on 3 August 2022. I do not accept her explanation that she missed the Commission’s call because the number was blocked. When Ms Carroll failed to answer her telephone at 10.00am on 3 August 2022, my associate was able to leave a message. This would not ordinarily be the case if a number was blocked. But even if I had accepted Ms Carroll’s account of what occurred, it is not a reasonable explanation for failing to attend the conference. Ms Carroll ought reasonably to have contacted my chambers when the call did not arrive. She made no effort to do so. Ms Carroll said that she went to the Telstra shop because she thought something was wrong with her telephone. If she thought there was a problem with her telephone, she ought to have contacted the Commission. But she did nothing. In addition, Ms Carroll failed to attend the conciliation conference before the conciliator on 18 July 2022. Ms Carroll said that she was in poor mental health, but she has not provided any detail or medical evidence in relation to this matter. In my view Ms Carroll unreasonably failed to attend the mention and the telephone conciliation, and it would be appropriate in all the circumstances to dismiss her application under s 399A(1)(a) also.
Ms Carroll’s application is dismissed.
DEPUTY PRESIDENT
Appearance:
B. Carroll for herself
S. Hoggett for the respondent
Hearing details:
2020
Melbourne
9 August
Printed by authority of the Commonwealth Government Printer
<PR744659>
0
0
0