Bradley William Lewer v Australian Postal Corporation
[2022] FWC 2822
•24 OCTOBER 2022
| [2022] FWC 2822 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Bradley William Lewer
v
Australian Postal Corporation
(C2022/2468)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 OCTOBER 2022 |
General protections (dismissal) – jurisdictional objection by respondent – whether binding settlement agreement – whether reasonable prospects of success – application dismissed
On 19 April 2022 Bradley Lewer (Mr Lewer or the applicant) applied to the Commission under s 365 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with a dismissal dispute in relation to an alleged dismissal on 25 March 2022 by Australian Postal Corporation (Australia Post or the respondent).
Australia Post, by response dated 27 July 2022, opposed the application and raised a jurisdictional issue. It claimed that Mr Lewer was not dismissed.
A dispute has arisen as to whether a binding settlement agreement or Deed was reached between the parties to this matter and whether the Commission has jurisdiction or power to conduct further proceedings on the application (the binding settlement issue).
This decision concerns the binding settlement issue.
I issued directions for the determination of the binding settlement issue on 5 October 2022.
Both parties agreed that the binding settlement issue be determined on the papers.[1]
Materials were filed by both Mr Lewer[2] and Australia Post[3].
I take all materials before me into consideration, including a witness statement filed by Australia Post of Taylor Erin Burt (Ms Burt), Employee Relations Adviser, dated 12 October 2022.[4]
Facts
The primary question for determination, in dispute between the parties, is whether a binding settlement agreement exists. That is a factual matter determined by this decision.
Facts subsidiary to this question are not in dispute. They are as follows.
On 14 April 2022 Mr Lewer filed a general protections application (not involving dismissal) with the Commission (C2022/2414).
On 15 April 2022 Mr Lewer attempted to separately file a general protections application involving dismissal (C2022/2468) with the Commission. He originally sent this application to an incorrect email address, “[email protected]”.
Mr Lewer’s application was accepted for filing on 19 April 2022 after he forwarded this application to a correct Commission email address, “[email protected]”.[5]
On 27 July 2022 Australia Post filed a response opposing the application and raising a jurisdictional issue claiming that Mr Lewer was not dismissed.
On 27 July 2022 Mr Lewer and Australia Post (represented by then Senior Employee Relations Partner Mr Crook) attended a conciliation conference before a staff conciliator on the application. The issues in dispute were not resolved at that time. However, during the conciliation, a without prejudice offer of settlement was made by Australia Post.
On 29 July 2022, following further correspondence between Mr Lewer and Australia Post, Mr Crook emailed Mr Lewer and, amongst other things, confirmed that Australia Post’s without prejudice offer of settlement remained open for acceptance by Mr Lewer until 5 August 2022.[6]
On 29 July 2022 Mr Lewer wrote to Mr Crook rejecting the offer, stating: “The amount is too low to accept and will wait and see what happens in this complaint and future complaints unless you offer more money”.[7]
On 9 August 2022, following a directions hearing, the Commission issued directions listing the respondent’s jurisdictional objection for hearing on 21 September 2022, with the parties directed to file materials by 30 August 2022 and (in reply) by 13 September 2022.
On 12 August 2022, Mr Crook ceased employment with Australia Post. Ms Burt took carriage of the matter on behalf of Australia Post.
On 30 August 2022 Australia Post and Mr Lewer filed materials in relation to the jurisdictional objection.
On 30 August 2022 Mr Lewer wrote to Ms Burt making an offer of settlement, stating: “I wish to confirm my intention to settle this matter as I was originally asking for $8,000 and Josh Crook did not accept this. Please confirm whether you wish to accept this”.[8]
On 31 August 2022 Ms Burt wrote to Mr Lewer rejecting this offer.[9]
On 4 September 2022 Mr Lewer wrote to Ms Burt stating his intention to withdraw the application and indicating that he would, “accept Josh Crooks offer before you took over this matter. If you can please finalise this matter I will accept his offer of $2,000 and withdraw the complaint”.[10]
On 4 September 2022 Mr Lewer wrote to the Commission in the following terms:[11]
“4 sep 2022
As this process has now dragged on for many months and the amount of time required is so substantial with such little money and the difficulty of accessing remedies available I have decided to accept Josh Crooks prior offer.
I also do not have the health condition required to continue to submit documents and attend hearings.
Therefore I have decided to accept Josh Crooks prior offer of $2000 and withdraw if that can be reinstated.
If this cannot be paid I am going to withdraw my complaint and start a new one with a different jurisdiction
Regards
Bradley”
On 6 September 2022 Ms Burt responded to Mr Lewer advising that the time for acceptance of Australia Post’s earlier offer (made by Mr Crook) had closed; that Australia Post was agreeable to resolving the matter with Mr Lewer on terms which included that “Australia Post will agree to pay to you the sum of $2,000 (subject to applicable taxation)”; and invited Mr Lewer to seek legal advice before accepting this offer.[12]
On 6 September 2022 Mr Lewer accepted Australia Post’s offer by email, stating: “I confirm I accept this offer and agree to your terms and conditions in relation to a $2,000 payment”.[13]
On 8 September 2022 Ms Burt emailed Mr Lewer a Deed of Release reflecting the agreement reached between the parties. Ms Burt requested that Mr Lewer review the terms of the Deed of Release carefully and repeated that he may wish to seek independent legal advice regarding the nature, effect and extent of the document.[14]
On 15 September 2022 Mr Lewer returned an executed copy of the Deed to Ms Burt by email.[15]
On 16 September 2022, in response to a request by my chambers for an update on the matter in light of the looming hearing date, Australia Post advised:[16]
“By way of update, the parties have reached an agreement in relation to the above matter.
The Applicant is copied to this correspondence and will file a notice of discontinuance in due course.
We respectfully request that the jurisdictional objection hearing listed for 21 September 2022 before Deputy President Anderson be vacated.”
On 16 September 2022, in response to a request by my chambers for a response by Mr Lewer, the applicant advised:[17]
“I can confirm an agreement has been reached and when I receive the total payment(s) by electronic transfer I can file the notice of discontinuance.”
On 23 September 2022 the Deed was countersigned by an authorised representative of Australia Post.[18]
The Deed provides (amongst other terms):[19]
at clause 2.3(a):
“(a) Australia Post agrees to pay the Employee:
(i)$2,000 (Additional Payment);
(ii)…
(iii)…
less applicable taxation (Total Settlement Payment).”
at clause 2.3(c):
“The Employee will be responsible for any further taxation on the Total Settlement Payment.”
at clause 8:
“The Employee warrants that:
(a) the Employee has voluntarily entered into this document;
(b) the Employee has had the opportunity to take independent advice about the nature, effect and extent of this document other than as set out in this document;
(c) Australia Post has not made any promise, representation or inducement to the Employee to enter into this document; and
(d) the Employee is aware that the Group, its officers, employees and agents, are relying on these warranties in executing this document.”
at clause 9.7:
“(a) This document contains the entire understanding between the Parties as to the subject matter of this document.
(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this document are merged in, and superseded by, this document and are of no effect. No Party is liable to any other Party in respect of those matters.
(c) No oral explanation or information provided by any Party to another:
(i)affects the meaning or interpretation of this document; or
(ii)constitutes any collateral agreement, warranty or understanding between the Parties.”
On 26 September 2022 Ms Burt contacted Australia Post’s payroll team by email to arrange for payment to be made to Mr Lewer in accordance with the terms of the Deed of Release.
On 26 September 2022 Mr Lewer advised the Commission:[20]
“I wish to confirm that my earlier email stating an agreement had been reached and that I agreed was sent in error.
To date, Taylor Burt has not sent her signed copy of the deed of agreement.
Until I receive payment no agreement has been finalized as the deed requires both parties to sign it.”
In a separate email that day, Mr Lewer advised:
“Further to my email advising an agreement has been reached that I agreed was sent in error, I note that the deed of release requires someone to sign and payment to be made before a discontinuation is lodged and in 21 days Australia Post needed to pay me to finalize the deed of release.”
On 27 September 2022 Australia Post made payment of $2,000 to Mr Lewer less the applicable taxation amount.[21]
On 28 September 2022 my chambers informed the parties as follows:[22]
“I refer to the above matter and the correspondence received from the parties yesterday evening.
Any dispute between the parties over the terms of a private settlement agreement are a matter for the parties, not a matter within the Commission’s jurisdiction or in respect of which the Commission can make a ruling.”
On 28 September 2022 Mr Lewer advised the Commission:[23]
“This agreement did not occur privately. It was done under mediation as an inherent process of the Fair Work Commission with the mediator able to offer $2,000 as Josh Crook, the former respondent discussed.
As a man with a disability, The Imperial Acts Application Act 1969 (NSW) schedule 3 included in the submission to this complaint includes “To no one will we sell, to no one will we deny, or delay right or justice”
I therefore wish to access my right to procedural fairness and have the mediators offer negotiated between the parties reflected as a payment in the deed of release or I reserve the right to continue my complaint with the Fair Work Commission as the deed of release is invalid until full payment is received.”
On 29 September 2022 my chambers advised the parties of a provisional view I had formed on the dispute over settlement and issued directions regarding the hearing of that dispute:[24]
“Dear Parties
The Deputy President informs and directs the parties as follows.
The Deputy President’s provisional view, based on the authorities listed below, is that if a binding settlement agreement exists, the Commission has no jurisdiction or authority to proceed further with the applicant’s claim and any dispute over the terms or implementation of a binding settlement agreement would then be matters between the parties, not the Commission.
The applicant and the respondent are each directed by the Deputy President to advise the Commission, copied to the other party, by no later than close of business on 4 October 2022 whether they believe a binding settlement agreement exists in this matter.
The applicant and the respondent are each directed by the Deputy President to attempt to resolve the dispute by further communication between each other by no later than close of business on 4 October 2022.
If there is a dispute as to whether a binding settlement agreement exists, and if Mr Lewer intends to proceed with his application, the Deputy President will then issue directions for that question (whether a binding settlement agreement exists) to be heard and determined.
Both parties are encouraged to take advice on what constitutes a binding settlement agreement and the effect of such a circumstance on the Commission’s jurisdiction. To assist, the Deputy President draws attention to the following decisions:
Masters v Cameron (1954) 91 CLR 353
Baulkham Hills Private Hospital v C R Securities (1986) 40 NSWR 622
Singh v Sydney Trains[2017] FWCFB 4562
Dokic v Multicultural Council of Gold Coast[2022] FWC 1417”(emphasis in original)
Submissions
Mr Lewer
I distil the following from Mr Lewer’s materials.
Mr Lewer submits that no binding settlement agreement was reached because at the time he signed the Deed it had not been signed by Australia Post and was in fact not signed by Australia Post until five days after he had done so.[25]
Mr Lewer submits that it is wrong to characterise the Deed as a private agreement because it was made “under mediation” conducted by a Commission staff conciliator.[26]
In the alternative, Mr Lewer submits that no binding settlement agreement was reached because he is a person with a disability and the Deed was signed by mistake.[27]
In the further alternative, Mr Lewer submits that no binding settlement agreement was reached because the Deed did not reflect the terms of his agreement. He says he agreed to receive a payment of $2,000 and did not agree to a deduction for taxation.[28] He asserts that ex gratia payments for casual employees following a termination are generally tax free.[29]
In the further alternative, Mr Lewer submits that no binding settlement agreement was reached because such agreement does not exist until he receives the total settlement payment of $2,000 (“I have not received my lawful entitlements therefore this deed of release is not binding”).[30]
Australia Post
Australia Post submit that the Deed of Release records a binding settlement agreement.
Australia Post submit that according to the express terms of the Deed, as well as the operation of law, the binding settlement agreement is a bar to any further proceedings on Mr Lewer’s application.
Mr Lewer did not execute the Deed under duress or mistake. He was invited by Australia post to seek independent legal advice before signing the Deed.
In making its payment to Mr Lewer, Australia Post gave effect to the terms of the Deed.
Any order concerning the validity or enforceability of the Deed can only be made by a court.
Any dispute over the implementation or terms of a legally enforceable Deed can only be determined by a court.
Based on established Commission authority, the existence of a binding settlement agreement acts as a bar to further proceedings including proceedings giving rise to issuing a certificate under s 368(3)(a) of the FW Act.
In these circumstances, the existence of a binding settlement agreement is a ground for the Commission to dismiss the application under s 587 of the FW Act.
Consideration
The principles governing the Commission’s consideration of the effect of binding settlement agreements are well established.
The existence of a binding settlement agreement needs to be established as a matter of fact. Whether a binding settlement agreement exists is commonly determined by reference to the categories of agreement outlined in Masters v Cameron[31] and Baulkham Hills Private Hospital v C R Securities.[32]
If a binding settlement agreement exists and its terms deal with current proceedings before the Commission, the existence of the agreement is a complete answer to those proceedings such that the Commission can recognise a binding settlement and dismiss an application that has no reasonable prospects of success under s 587 of the FW Act.[33]
Does a binding settlement agreement exist between Mr Lewer and Australia Post with respect to Commission matter C2022/2468?
The answer to this question is yes.
Terms of settlement were agreed by Mr Lewer in writing on 15 September 2022 and by Australia Post on 23 September 2022.
The agreement is in evidence.[34] Its terms specifically provide for the discontinuance of and release from the current proceedings C2022/2468.
Mr Lewer’s submission that the Deed is not binding because it was not signed by Australia Post until five days after he had done so has no force. Irrespective of whether an agreement creating binding contractual obligations of the first or second category in Masters v Cameron or of the fourth category in Baulkham Hills Private Hospital v C R Securities existed prior to both parties signing the Deed on 15 and 23 September 2022 respectively, it is clear that at least from 23 September 2022 when Australia Post countersigned the Deed that a formal agreement of that character existed on and from that date.
Were it necessary to determine whether a binding settlement agreement existed prior to that date, I would so find. An agreement of the first category in Masters v Cameron did in fact exist. Such an agreement was made on 6 September 2022 when Mr Lewer accepted Australia Post’s offer of that same date.
Mr Lewer’s contention that the Deed is not a private agreement because it was made “under mediation” conducted by a Commission staff conciliator has no force. The submission is wrong as a matter of fact. The agreement is not the product of a Commission determination. It is an agreement made between parties. Thus, it is a private agreement. In this matter, it is clear from the evidence that the offer made by Australia Post during conciliation had expired and that the settlement agreement arose from Australia Post renewing that offer in private correspondence with Mr Lewer on 6 September 2022. In any event, that an agreement between parties may be facilitated by a Commission process does not alter its character as a private agreement.
Mr Lewer’s submission that no binding settlement agreement was reached because it was made by mistake, or as a consequence of disability or that the Deed did not reflect, in his opinion, the terms of his agreement as to taxation of the settlement sum are matters that concern a challenge to the legal validity of the Deed. There is no evidence before the Commission on which such findings can be made. Only a court and not the Commission has power to order that a Deed is invalid or unenforceable on the ground of mistake, unconscionability or on other such basis.
In any event, it is apparent at least from the terms of the signed Deed (cl 2.3 (a) and (c)) and the evidence before the Commission that express provision was made for the deduction of taxation from the settlement sum and that Mr Lewer was given the opportunity to consider its terms and take legal advice before signing the Deed.
Mr Lewer’s further submission that no binding settlement agreement is reached until he receives a settlement payment of $2,000 takes the matter no further. This submission is in effect a reformulation of the submission that the Deed provided an entitlement to a sum of $2,000 without deduction for taxation. I have not found that to be so. In any event, given that I have found a binding settlement agreement existed in the terms of the written Deed, any dispute over the implementation of the terms of the Deed can only be determined by a court.
Does the binding settlement agreement act as a barrier to further Commission proceedings on Mr Lewer’s application?
Both on its terms, as well as a matter of law, the answer to this question is yes.
Clauses 4 and 5 of the Deed provide:
“4. Discontinuance of Proceedings
The Employee will, within seven days of being paid the Total Settlement Payment, withdraw and discontinue the Proceedings in their entirety by filing a notice of discontinuance and serving a copy on Australia Post.
5. Bar to proceedings
The Parties agree that any member of the Group, or any director, officer, employee or agent of any member of the Group, may plead this document as an absolute bar in any court of law, arbitral tribunal or otherwise in response to any proceedings or Claims whatsoever brought by the Employee in respect of or arising out of the matters referred to or contained in this document.” (emphasis in original)
These clauses evince an express intention that these proceedings be brought to a close upon the settlement sum (‘Total Settlement Payment’) being paid.
In any event, the accord and satisfaction evidenced by the Deed binds the parties to give effect to their agreement on its terms. It extinguishes Mr Lewer’s existing cause of action and replaces it with a new contractual cause of action based on the agreement.
This being so, the settlement agreement is a complete answer to Mr Lewer’s general protections application. It means that his application no longer has reasonable prospects of success.[35]
Disposition
As Mr Lewer’s application has no reasonable prospects of success, the Commission’s power to dismiss the application under s 587 of the FW Act is enlivened.
There are no discretionary reasons not to exercise that power. There are compelling reasons to do so. It is not in the interests of the efficient administration of justice and the functioning of the Commission for applications that are subject to binding settlement agreements to remain live where further proceedings on those applications are barred. This is particularly so in circumstances where, as in the current matter, the Deed requires the discontinuance of an application but where that discontinuance has not been filed.
To the extent that Mr Lewer has not done so because he believes that he is entitled to a tax free payment by Australia Post of $2,000 and not the payment of $2,000 less tax that he has received, that is a matter that incapable of being resolved by order of the Commission.
For these reasons, application C2022/2468 is dismissed.
An order[36] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Hearing details:
Matter decided on the papers.
[1] Mr Lewer by email to ‘Chambers – Anderson DP’ 11 October 2022 8.48pm; Australia Post by email to ‘Chambers – Anderson DP’ 12 October 2022 10.34am
[2] Emails to ‘Chambers – Anderson DP’ 11 October 2022 8.48pm and 16 October 2022 2.38pm
[3] Email to ‘Chambers – Anderson DP’ 12 October 2022 10.34am
[4] Statement 12 October 2022 including TB1 to TB3
[5] The s 365 application was filed within time due to the fall of Easter public holidays. The earlier non-dismissal dispute application concerning the same or similar matters was filed by Mr Lewer on 14 April 2022 under s 372 of the FW Act. The Commission conducted a conference on the s 372 application on 5 May 2022. It did not resolve. The file was then administratively closed
[6] TB1
[7] TB1
[8] TB2
[9] TB2
[10] TB2
[11] Email to ‘Chambers – Anderson DP’ 4 September 2022 8.36pm
[12] TB2
[13] TB2
[14] TB2
[15] TB3
[16] Email to ‘Chambers – Anderson DP’ 16 September 2022 10.28am
[17] Email to ‘Chambers – Anderson DP’ 16 September 2022 2.38pm
[18] TB3 page 7
[19] TB3
[20] Emails to ‘Chambers – Anderson DP’ 26 September 2022 5.11pm and 5.15pm
[21] TB4
[22] Email from ‘Chambers – Anderson DP’ 27 September 2022 5.16pm
[23] Email to ‘Chambers – Anderson DP’ 27 September 2022 3.13pm
[24] Email from ‘Chambers – Anderson DP’ 29 September 2022 10.01am
[25] Emails to ‘Chambers – Anderson DP’ 26 September 2022 5.11pm and 5.15pm
[26] Email to ‘Chambers – Anderson DP’ 28 September 2022 3.13pm
[27] Emails to ‘Chambers – Anderson DP’ 26 September 2022 5.11pm and 5.15pm
[28] Email to ‘Chambers – Anderson DP’ 27 September 2022 5.16pm
[29] Email to ‘Chambers – Anderson DP’ 1 October 2022 11.35am
[30] Submission by email 16 October 2022 2.38pm see also email 1 October 2022 11.35am
[31] (1954) 91 CLR 353
[32] (1986) 40 NSWR 622
[33] Singh v Sydney Trains[2017] FWCFB 4562; Dokic v Multicultural Council of Gold Coast[2022] FWC 1417; Stenly v The Hour Glass (Australia) Pty Ltd[2022] FWC 2674
[34] TB3
[35] Australian Postal Corporation v Gorman [2011] FCA 975 at [33] per Besanko J: “…a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success”. See also Curtis v Darwin City Council [2012] FWAFB 8021
[36] PR747039
Printed by authority of the Commonwealth Government Printer
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