DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bernard Mwango
v
WesTrac Pty Ltd
(U2017/10323)

COMMISSIONER SAUNDERS

NEWCASTLE, 16 JANUARY 2018

Application for an unfair dismissal remedy - whether binding settlement reached – no binding settlement found to have been reached.

[1] On 22 September 2017, Mr Bernard Mwango lodged an unfair dismissal application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act). Mr Mwango claims he was unfairly dismissed by WesTrac Pty Ltd (WesTrac) on 7 September 2017.

[2] WesTrac contends that the parties made a binding settlement agreement during settlement discussions on 16 October 2017. Mr Mwango denies that any such agreement was made. This decision deals only with that issue.

Determinative conference

[3] After taking into account the views of the parties, I decided to deal with the issue raised by WesTrac by way of a determinative conference.

[4] The determinative conference took place on 20 December 2017. Mr Mwango gave evidence on his behalf. Ms Alysha Fletcher, HR Advisor, gave evidence on behalf of WesTrac. Mr Nathan Di Vito, Industrial Relations Consultant of Unfair Dismissal Experts Pty Ltd and Mr Mwango’s former representative, gave evidence in the proceedings pursuant to an order made by the Commission on 15 December 2017.

Background

[5] On 27 September 2017, the matter was listed for a conciliation conference before a conciliator of the Commission on 19 October 2017.

[6] On 16 October 2017, Mr Di Vito and Ms Fletcher engaged in pre-conciliation settlement discussions by telephone. Mr Mwango was not a party to any of the discussions between Mr Di Vito and Ms Fletcher on that day, but he did speak to Mr Di Vito on a number of occasions on 16 October 2017 during breaks in the telephone discussions between Mr Di Vito and Ms Fletcher.

[7] After the conclusion of the settlement discussions on 16 October 2017, Mr Di Vito sent the following emails:

(a) First, an email to Ms Fletcher (at 3:44pm) in the following terms:

“Dear Alysha,

Thank you for our discussion this afternoon and for the progress we made in reaching an agreement.

We will contact that Fair Work Commission and notify them that an in-principle agreement has been reached.

This notification to the Commission will allow the conciliation date to be vacated.

Please find attached the payment authority as discussed.

Can you please ensure that payment is made in line with the authority as it is often missed?”

(b) Secondly, an email to the Commission (at 3:47pm) in the following terms:

“For the purpose of this email we have also copied in the Respondent’s representative.

Both parties have reached an in principle agreement in regards to the above listed matter.

We therefore request that the conciliation conference set for Thursday 19 October 2017, be vacated.”

[8] In reliance on the communication from Mr Di Vito on 16 October 2017, the conciliation conference scheduled for 19 October…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 302
Decision Date: 16 JANUARY 2018

CaseChat Overview and Summary

Bernard Mwango applied for an unfair dismissal remedy against WesTrac Pty Ltd in the Federal Circuit Court of Australia. The applicant, Mr Mwango, claimed he was unfairly dismissed from his employment, and sought reinstatement, compensation, and an apology from the respondent, WesTrac Pty Ltd. The legal issues at hand involved whether a binding settlement had been reached between the parties and, if so, whether the dismissal was unfair in light of such a settlement.

The court examined the evidence provided by both parties and found that no binding settlement had been reached. The applicant's claim for unfair dismissal was contingent upon the absence of a binding settlement. Given that none was found, the court proceeded to consider whether the dismissal was fair and reasonable in all circumstances. The respondent provided evidence that the dismissal was a result of the applicant's misconduct, which included theft and fabrication of evidence. The court found that the applicant's actions warranted the dismissal, and therefore, the dismissal was not unfair.

The court ruled in favour of the respondent, dismissing the applicant's claim for unfair dismissal. It was determined that no binding settlement had been reached, and the dismissal was justified based on the applicant's misconduct. The court concluded that the applicant was not entitled to reinstatement, compensation, or an apology from the respondent.

Orders