Bridget Curtis v Darwin City Council
[2012] FWA 5224
•2 JULY 2012
Note: An appeal pursuant to s.604 (C2012/4669) was lodged against this decision - refer to Full Bench decision dated 17 September 2012 [[2012] FWAFB 8021] for result of appeal.
[2012] FWA 5224 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bridget Curtis
v
Darwin City Council
(U2011/14723)
COMMISSIONER SIMPSON | BRISBANE, 2 JULY 2012 |
Application for unfair dismissal remedy - jurisdictional objection - whether matter subject to agreement to settle - whether matter barred from proceeding - discretion under s587.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Bridget Curtis (“the Applicant”) who alleges that the termination of her employment with Darwin City Council (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act. The Applicant had been employed by the Respondent for approximately 10 years in various horticulturalist positions. 1
[2] The application was filed on 20 December 2011 by the Applicants then representative United Voice. A conciliation conference was convened on 30 January 2012 but did not proceed as the parties advised that a settlement had been reached in the matter.
[3] On 16 February 2012 correspondence was received by the Tribunal from Mr Antony Downs of NT Law enclosing a Form F53 - Notice of Representative Commencing to Act on behalf of Ms Curtis and requesting that the matter be set down for a further conciliation conference.
[4] A further conciliation conference was listed for 29 March 2012. An adjournment request was granted to the Applicants’ representative and the matter relisted for conciliation on 4 April 2012.
[5] On 29 March 2012 the Applicant representative filed an amended application (“the amended application”) for unfair dismissal remedy.
[6] On 30 March 2012 the Respondent filed a Form F4 - Objection to Application for Unfair Dismissal Remedy and further advised the Tribunal that the Respondent would not participate in any further conciliation of the matter until the objection to the application was heard and determined.
[7] The matter was then allocated to my Chambers for determination of the jurisdictional application that it had been settled pursuant to a binding agreement between the parties, and then, if necessary, the merits of the application. The matter was listed for Mention on 21 May 2012, directions were issued and the matter set down for Hearing of the jurisdictional matter on 18 June 2012.
[8] The matter proceeded by way of video and telephone link between Darwin and Brisbane. While this arrangement was not ideal I thank the parties and their representatives for the way in which they assisted the Tribunal in this matter.
[9] At the Hearing the Applicant was represented by Mr Taylor of Counsel and Mr Downs of NT Law. The Respondent was represented by Mr Roffey of the Western Australian Local Government Association.
THE LEGISLATION
[10] The Respondent submitted by their Form F4 that the Tribunal should exercise its discretion and dismiss the application as either being barred by the terms of a binding agreement between the parties or alternatively as the matter was frivolous and vexatious.
[11] The Act provides for the conduct of matters before Fair Work Australia (“FWA”). Relevantly to this matter s.587 provides:
587 Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA 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.
(2) Despite paragraphs (1)(b) and (c), FWA 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) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.
Section 587 provides that FWA may dismiss an application in limited circumstances.
Background
[12] Both the original and amended applications allege that the employment of the Applicant was terminated by letter dated 16 December 2011.
[13] The reasons for termination contained in the termination letter were the Applicants’ alleged “inability fulfil the inherent requirements of the position description due to...loss of licence” and that there was no vacant alternative positions for which the Applicant could be considered.
[14] The substance of the objection which forms the basis of this decision is that the Applicant, through her original representative Ms Erina Early, Senior Industrial Officer of United Voice, put an offer to settle to the Respondent on 30 January 2012 based on the Applicant’s instructions. That offer was verbally accepted by the Respondent, through its agent Mr Crawley, and later confirmed by email from Ms Early to Mr Crawley and Mr Roffey. Ms Early then advised the Unfair Dismissals Team of FWA that the matter had settled and the conciliation conference was to be vacated.
[15] Further correspondence on this date between Mr Roffey and Ms Early indicates that Mr Roffey offered that he would draft a deed of settlement for final execution.
[16] A draft deed was supplied to Ms Early by email on Tuesday 31 January 2012 to which Ms Early replied, also on Tuesday 31 January 2012 “[T]he draft deed of settlement is fine”. 2
[17] It appears that the Respondent treated the matter as being settled from this date despite the fact that the deed was never executed by the Applicant or her representative. In this regard the evidence of Ms Early was that the Union attempted to have the Applicant attend the Union office in person to discuss the terms of the deed more thoroughly and presumably, if she agreed, to execute the deed. This evidence was not contradicted by the Applicant but she asserts she advised the Union to halt all settlement of this matter as she was seeking further legal advice.
[18] By correspondence to the Respondent on 16 February 2012, Mr Downs advised that he was now acting in the matter and requested further information regarding the Applicant’s employment. After a series of correspondence between the parties as now represented the situation arose where the Respondent formally objected to the application proceeding.
Summary of Respondent’s submissions
[19] The Respondent submits that FWA should exercise its discretion under s.587 and dismiss the application as a whole on two grounds; that the matter is subject to the terms of a binding settlement agreement that includes a term releasing the Respondent from “all claims, or potential claims” or that the application is frivolous and vexatious.
[20] The Respondent relies upon the well known principles set down in Masters v Cameron 3 (“Masters”). It is submitted that the agreement in this matter is of a kind described in Masters as a category 2 agreement or in the alternative or a category 1. These classes refer to cases where:
“(1) the parties have agreed on all terms and intend to be immediately bound to perform those terms “but at the same time propose to have the terms of their bargain restated in a form which will be fuller or more precise but not different in effect”; or
(2) the parties have agreed on all terms and intend no departure from or addition to that which their agreed terms express or imply, “but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document”
In either category the authority of Masters would mean that a binding contract or agreement had been reached.
[21] The Respondent further relies on the decision of Commissioner Gooley in Rebecca Tomas v Symbion Health 4which is submits is factually similar to this matter and a similar result should ensue.
[22] In the alternative or as an extension of the first ground of objection the Respondent asserts that the application is frivolous or vexations and would amount to an abuse of process should the application proceed. In this regard the Respondent relied upon the decisions of Ms Toni Potter v Darwin City Council, 5 Gorman v Australia Post6 and Australian Postal Corporation v Gorman and Fair Work Australia.7
Summary of Applicant’s submissions
[23] The Applicants evidence was constituted by a statement of the Applicant sworn on 5 June 2012 with seven attachments. Ms Curtis was cross-examined by Mr Roffey during the Hearing of 18 June 2012.
[24] Ms Curtis’ evidence is that in late 2010 she suffered multiple personal setbacks and in early 2011 was diagnosed with epilepsy. As part of this process Ms Curtis was no longer able to drive a car which meant she had to rely increasingly on public transport and walking to get to work.
[25] So far as is relevant to the present proceedings Ms Curtis states that she had a meeting with “the Union” on 16 December 2011 but that subsequent to this her attempts to contact the Union went unanswered and she did not receive advice from the Union in writing. As already discussed the Union filed the originating application with FWA on 20 December 2011. Ms Curtis says she was not advised of this application.
[26] In the meantime Ms Curtis had apparently contacted FWA and received correspondence in reply on 16 December 2011 that attached a blank application for unfair dismissal and a guide to unfair dismissal. Following a period of hospitalisation, of which no evidence was adduced; Ms Curtis filed an application for unfair dismissal with Fair Work Australia on or about 27 December 2011. Ms Early said the Union was unaware Ms Curtis had attempted to lodge a separate F2. 8 The Applicant filed written submissions arguing there was no binding agreement for the following reasons;
● There was no offer and acceptance;
● The union acted beyond its scope and authority;
● There was a mistake on the part of the union in relation to Ms Curtis’s instructions;
● There was a mistake on the part of the Respondent in relation to terms of settlement;
● There was no consensus ad idem or meeting of the minds;
● The purported agreement is void or voidable;
● The purported binding agreement is illusory as the consideration is illusory;
● There is a total failure of consideration, if any and all, and if so the consideration is totally inadequate;
● The Applicant was impaired and did not have capacity to give full, proper and reasoned instructions;
● The union was aware of the Applicants impairment, and if not, should have been aware of this by due reasonable inquiry,
● The Respondent was aware of Bridget’s impairment and took advantage of her impairment;
● The Respondent lacked good faith;
● The Applicant was not afforded independent advice;
● The Applicant was not provided with the necessary advice and reasonable advice to make a fully informed decision;
● The purported binding agreement lacked certainty;
● The purported binding agreement if found to exist, would be against conscience and result in the Respondent being unjustly enriched and entitled to restitution.
Consideration
[27] In her statement Ms Curtis says she has been a member of the Union since she commenced employment with the Respondent. Ms Curtis did not contest that United Voice was her industrial representative at the time. 9 10
[28] Ms Curtis gave evidence about the effect the medication she takes for epilepsy has on her. 11 Contrary to her witness statement, during oral evidence Ms Curtis said the medication doesn’t affect any of her abilities.12 She said at the time of termination she was suffering a lot of stress and was very emotional but this couldn’t be put down to the medication she was taking.13 She maintained she was 100% clear about the instructions she gave Ms Early, she remembered exactly the conversation, and was thinking clearly. At the same time she maintained the medication was having “a couple of side effects.”14
[29] Ms Curtis gave evidence that she takes Epilim to manage her epilepsy. 15 Ms Curtis was referred to material attached to her statement which among other things described the possible side effects of taking anti-seizure medication.16 She agreed that this information did not include any detrimental effects on a person’s ability to respond and comprehend and think clearly.17 She agreed to the same proposition with regard to the side effects of Epilim.18 19
[30] The state of mind of Ms Curtis on 30 January 2012 is important because it goes to her capacity to give instructions to Ms Early that day. Ms Curtis gave evidence that on the morning of the 30 January 2012 she was working for her father doing jobs trimming trees and helping out in her father’s business, 20 21 and that there was no problem with her mental state at that time. She also said that she suffered no impaired ability to respond comprehend and think clearly.22 23 This evidence as I have stated contradicts her witness statement. Her oral evidence leads me to the view that her earlier evidence in her statement regarding the impact of the medication on her decision making capacity on both 16 December 2011 and 30 January 2012 was either untrue or an exaggeration.
[31] There is insufficient medical evidence for me to conclude that the medication she was taking impacted on her capacity to give instructions to Ms Early on the morning of 30 January 2012. My view in this regard is reinforced by the evidence Ms Curtis gave that she was working that day, she sent an email to FWA herself that day, and her own oral evidence that the medication was not affecting her that day.
[32] Mr Francis Crawley, the General Manager Corporate Services of the Darwin City Council gave evidence in the Respondents case that he has delegated authority to offer and accept settlement proposals that relate to industrial claims within the Corporate Services Business Unit. 24
[33] It was his evidence that between 9.00am and 9.30am on Monday 30 January 2012 he received a phone call from Ms Erina Early, during which Ms Early outlined terms of settlement. Those terms were that the Applicant would agree to settle her unfair dismissal claim if she was given the right to resign, a statement of service and deed of release stating that either party cannot make disparaging remarks about each other. Mr Crawley said he requested Ms Early provide the terms of the settlement offer in writing to him. Mr Crawley said the email was sent by Ms Early outlining the terms at 9.39am 25 and he replied at 9.42am confirming the Respondent agreed to the proposed settlement terms.26 27
[34] Mr Crawley said on 16 February Mr Antony Downs of NT Law forwarded an email to the Respondent saying he was now acting for the Respondent, and Mr Crawley responded on 24 February 2012 advising the Respondent he believed a binding agreement had been reached with the Applicant. 28
[35] Under cross examination Mr Crawley conceded he never attended a meeting where the Applicant was present, or had a telephone discussion or exchanged emails with the Applicant. 29
[36] Ms Erina Early for the Respondent tendered two statements. 30 Ms Early said she was the Unions Senior Industrial Officer, had been with the union for nearly six years and dealt with Unfair Dismissal applications on a regular basis.31 Ms Early’s statement refers to a meeting on 16 December 2012 at the Office of United Voice attended by Ms Early, Mr Lewis and the Applicant.32 33 Ms Curtis confirmed she was dismissed at a meeting on 16 December and subsequently was taken to a meeting at the union office where she says she was extremely distressed, distraught and crying.34 Ms Early confirmed Ms Curtis was in such a state.35
[37] Ms Early gave evidence Ms Curtis advised the Union she wished to lodge an application for unfair dismissal and Ms Early said it was recommended to Ms Curtis she consider what remedies she was seeking and advise the Union accordingly. Ms Early said following the meeting she lodged an Unfair Dismissal application on the Applicant’s behalf on 20 December 2011, and a notice of listing from Fair Work Australia was received advising of conciliation on Monday 30 January 2012. 36 37 38 Ms Early agreed that during the discussions with the Applicant on 16 September 2012 at that time Ms Curtis sought reinstatement.39
[38] Ms Curtis says that due to her mental state she didn’t remember too much about the discussion on 16 December however she remembers talking about her termination but not in great detail. 40 She also said a couple of days after her termination she was admitted to hospital as a result of stress and seizures.41
[39] Ms Curtis claimed after the meeting on 16 December 2011 she called the Union a couple of times and the calls were not returned. 42 Ms Early denied Ms Curtis had called the Union and her calls were not returned as telephone calls to the Union are logged onto a tracking membership service called Unison.43
[40] Ms Curtis states that about 27 December 2012 she completed and believes submitted an application for unfair dismissal remedy which was attached to her statement. 44 Ms Early said the Union was unaware Ms Curtis had attempted to lodge a separate F2.45 FWA records indicate an F2 application was faxed to the Darwin Office of FWA on 28 December 2011. No Form 54 Notice of Representative Ceasing to Act was ever filed by Ms Curtis or United Voice and there was no suggestion by Ms Curtis that she did not regard United Voice as her representative, at least up to 30 January 2012. The faxing of another application regarding her dismissal to FWA after her nominated representative had already done so does not in my view alter the fact that the central question remains whether Ms Curtis made an agreement to settle her dispute with the Respondent regarding her dismissal on 30 January 2012 or not.
[41] Ms Curtis also said she did not recall receiving a copy of the notice of listing for the conciliation conference. 46FWA records indicate a Notice of Listing for a conciliation conference was sent to United Voice, Ms Bridget Curtis, and Ms Kelly Hoffman of Darwin City Council on 10 January 2012. The address the Notice of Listing records for Ms Curtis is PO Box 217 Humpty Doo NT 0836. Ms Early refutes that Ms Curtis did not know about the conciliation conference. Ms Early said she received a phone call from an FWA employee on the morning of 30 January 2012 to confirm her participation in the conference. Ms Early said she told the FWA employee that she had not spoken to Ms Curtis and the FWA employee advised Ms Early that Ms Curtis had been in contact with FWA and confirmed her intended participation at the conciliation. Ms Early says she then obtained Ms Curtis’s phone number from the FWA employee and subsequently spoke to Ms Curtis between 8.30am and 9.00am that morning to seek instructions.47 48
[42] Ms Curtis’s evidence is less clear on whether she received the notice of listing, saying she couldn’t’ recall. 49 She then changed her evidence to say she didn’t receive the notice of listing.50
[43] The language Ms Curtis used in her statement was that she asked Ms Early if the conciliation was on that day. 51 She confirmed she asked the question first under cross examination.52 However when asked how she knew a conciliation was part of the process in an unfair dismissal claim she said because Ms Early told her in that same conversation.53 The evidence of Ms Curtis indicates she asked Ms Early if the conciliation was on that day at the commencement of the discussion. This raises the question of why she would do this if she didn’t know there was a conciliation scheduled as she claimed.
[44] An inference that could be drawn from Ms Curtis’s language is that she knew a conciliation conference was going to be held at some time, and added to this is some inconsistency in her evidence on receiving a notice of listing for the conciliation.
[45] Further on this point it was also Ms Curtis’s evidence that she sent an email to FWA on 30 January 2012 advising FWA of her new mobile number as she had changed it on the weekend. 54 Her actions in doing this could provide some support for an inference the Respondent seeks to draw that she was doing this because she knew about the conciliation conference. This fits Ms Early’s evidence about an FWA employee advising her that Ms Curtis had already confirmed she would be participating in the conference,55 weighs against Ms Curtis’s claim that she only knew about the conciliation conference because Ms Early told her on the morning of 30 January.56 57
[46] Ms Early’s evidence was she was given Ms Curtis’s new mobile number by an FWA employee, and that is how she contacted Ms Curtis despite Ms Curtis having a new phone number. 58 On the basis of the evidence I am more inclined to accept the proposition Ms Curtis did know about the conciliation conference before she spoke to Ms Early on the morning of 30 January 2012.
[47] According to Ms Early when she initially spoke to the Applicant on 30 January Ms Curtis asked Ms Early whether she could ring her back as she was working. Ms Early said she would ring back in 15 minutes which she did, and in that conversation Ms Curtis advised Ms Early she was working and her mother would be attending on her behalf. It is Ms Early’s version that she advised the Applicant it was her application not her mothers and she had to participate or seek an adjournment.
[48] Ms Curtis denied ever telling Ms Early that her mother would be attending the conference on her behalf. 59 Ms Curtis agrees she said to Ms Early that she was working; however her version of the conversation is very different from that point. Ms Curtis claims she told Ms Early words to the effect “I wanted my job back and they can pay for what they have done to me”.60 Ms Early agreed under cross examination that Ms Curtis had said she wanted her job back61, however later in the conversation was clear that was not what Ms Curtis ultimately sought as part of a settlement.62
[49] The version of the conversation provided by Ms Early in her first statement from that point was as follows:
26. I cannot recall if Ms Curtis asked me to ring her back but I requested that Ms Curtis provide the remedies she was seeking from the conciliation.
27. Ms Curtis asked what type of remedies she could ask for.
28. I advised Ms Curtis that remedies she could potentially seek were the right to resign, a statement of service, deed of release stating that either party cannot make disparaging remarks about each other, a settlement amount or reinstatement of employment.
29. Ms Curtis asked what settlement amount she could ask for and I advised it depends on factors such as the nature of the dismissal, how long she had worked for Darwin City Council and also if she received any payment in lieu of notice from the Council.
30. Ms Curtis advised that money was not an outcome she was considering as she wanted her job back.
31. I advised that reinstatement may not be successful at the conciliation but could be an outcome if the matter was referred to a hearing with Fair Work Australia.
32. Ms Curtis advised that she wanted to resolve this matter and was happy to seek the right to resign, a statement of service and deed of release stating that either party cannot make disparaging remarks about each other.
33. I confirmed this outcome with Ms Curtis.
34. Ms Curtis confirmed that this was the outcome she was seeking at the conciliation.
35. This telephone conversation went for a period of approximately ten minutes.
[50] The version of the relevant part of the same conversation in the statement of Ms Curtis is as follows:
64. I asked Erina Early what she recommended.
65. Erina Early advised me that the right to resign as a good one, and a few other things I didn’t understand. I also said that I didn’t think that the conciliation was going ahead and that she should have called me. I requested an adjournment. Erina Early said that I couldn’t get one it was too late and the conciliation conference was still going ahead today.
66. I was on medication at the time and was not thinking clearly.
67. I did not agree to, or give instructions to, offer on my behalf the terms as set out in the statement of Erina Early at paragraphs 32 and 33 dated 23 May 2012.
68. Erina Early did not discuss with me any amount of money or compensation figures. I thought she was going to ask for my job back.
[51] Ms Early says she immediately contacted Mr Frank Crawley by phone, put the proposed terms to him on the Applicants behalf and Mr Crawley advised the Council would accept the proposed settlement and requested the Union email him and Mr Scott Roffey with the outline of the proposed settlement in writing which she did at 9.39am and attached a copy of the email to her statement. 63 The email read as follows:
“ ..Dear Frank and Scott
As per our phone conversation this morning, Ms Bridget Curtis is happy to accept the below to resolve her application for unfair dismissal;
Right to resign;
Statement of service (detailed dates of employment and job title) and;
Deed of release encompassing the above and wording that either party cannot make disparaging remarks.
Many thanks
Erina Early
Senior Industrial Officer
United Voice / Northern Territory..”
[52] Appendix 1 to the statement of Ms Early records that the following response was received;
“..Dear Erina and Scott,
The Council will agree to the request.
Regards
Frank Crawley
General Manager Corporate Services
Darwin City Council..”
[53] Ms Early said she contacted Ms Curtis to congratulate her on the successful outcome of discussions with the Respondent and informed her that the conciliation would not proceed as the parties had agreed to settle. Ms Early claims Ms Curtis then thanked her for her assistance. 64
[54] The version of this subsequent conversation provided by Ms Early is completely at odds with the version provided by Ms Curtis who said as follows in her statement:
69. Later I received a further telephone call from Erina Early informing me words to the effect that “congratulations, we have won.” She said that “you have the right to resign,” “there was no more money” and “that was the best we can do.”
70. I asked “won what”?
71. Erina Early stated “the right to resign”.
72. I was extremely shocked by this.
73. I replied by asking “is that the best you can do”?
74. Erina Early said words to the effect “yes it is the best compromise we can make at this time”.
75. I said words to the effect, “that is not good enough”, “its pathetic”, “its not enough mate”, and that I “have to seek some advice”. I then informed Erina Early that I would speak with her at a later date.
76. I deny thanking Erina Early for her assistance as set out in paragraph 40 of her statement dated 23 May 2012.
77. Erina Early wanted me to go back to the office to sign the paperwork. In informed her that I was not signing anything and that “it was not enough” and “not good enough”.
[55] Ms Early says Mr Roffey subsequently drafted a Deed and sent it to her via email on 31 January 2012. According to Ms Early she then attempted to contact Ms Curtis without success. As she was going to Sydney she asked Mr Lewis of the Union to contact the Applicant which he succeeded in doing on 9 February 2012 at which time Ms Curtis requested Ms Early not proceed any further with the Deed as she was seeking legal advice. 65
[56] Ms Early consistently maintained that Ms Curtis voluntarily advised of the outcome she was seeking and did not advise that she wanted monetary compensation or her employment reinstated. 66
[57] Ms Early also denied the version of the second conversation between her and Ms Curtis in her statement in reply repeating the claim in her earlier statement that she congratulated Ms Curtis and advised her that the conciliation would not proceed as the matter had been settled. 67 Ms Early rejected Ms Curtis’s claim that she challenged the outcome as Ms Curtis claimed to have done in her statement as set out above.68
[58] Ms Early was asked in cross examination what she envisaged the reference to ‘deed of release’ in her email to Mr Crawley and Mr Roffey at 9.39am on 30 January meant and she replied as follows:
PN233
What did you envisage the deed of release to mean?---The deed of release - sorry, Mr Taylor, the deed of release to basically encompass the terms of settlement, so the right to resign and statement of service, and that the matter would be pursued any further.
PN234
What do you mean by pursued any further?---So the application for unfair dismissal remedy would be closed.
PN235
And that would be a closure of the unfair dismissal remedy?---Yes, that’s correct, Mr Taylor.
PN236
Now, did you take any further instruction on your point from Ms Curtis in relation to settlement? That is, indeed, what you are saying she has said to you?---That’s correct. After I’ve spoken to Frank and that, I rang back Bridget, Ms Curtis, and basically her that everything has been settled and congratulated on her outcome.
PN237
Did you discuss with her paragraph 6 of the deed?---No, I hadn’t sighted the deed yet, Mr Taylor.
**** ERINA EARLY XXN MR TAYLOR
PN238
All right. You hadn’t signed the deed yet?---No.
PN239
Are you aware that the deed says at paragraph 6, there’s a mutual obligation and that the deed is in full and final satisfaction of ending all claims. All claims and potential claims?---That’s correct.
PN240
And you’re saying that she wanted to resolve her unfair dismissal claim?---That’s correct, Mr Taylor.
PN241
But not any other claim?---No other claims were identified by Ms Curtis.
[59] Further cross examination included the following;
PN245
Just generally, what were the options available to her in relation to her dismissal?
---We discussed reinstatement, we discussed other options available is a monetary settlement, the right to resign, a statement of service, and deed that no disparaging remarks were made - either party can’t make remarks about each other. We discussed - - -
PN247
Did you - - - ?---Sorry.
PN248
Did you discuss harassment or discrimination claims at all?---What, discrimination in relation to her epilepsy?
**** ERINA EARLY XXN MR TAYLOR
PN249
To her employment?---In regards to what, Mr Taylor?
Well, in regards to her medical condition or anything else?---No, we did not discuss any other matter. We just discussed Fair Work Australia unfair dismissal.
[60] This evidence indicates that Ms Early did not believe that the proposed settlement offer she made on behalf of Ms Curtis and accepted by Mr Crawley included settlement of all claims, but rather it was for settlement of the unfair dismissal claim. The email sent to Mr Crawley and the reply accepting this proposal supports the conclusion that the settlement proposed and accepted was for the unfair dismissal claim, and did not extend to other claims. 69
[61] Counsel for the Applicant in submissions was critical of Ms Early for responding to the draft deed sent to her by Mr Roffey in a hasty manner, and without reference to Ms Curtis. I accept some criticism is warranted in that it appears the terms in the draft deed were wider than the agreement made the previous day and Ms Curtis should have been provided with the draft deed for her consideration and response before Ms Early made any indication of its acceptance or otherwise to the Respondent. However for reasons I set out below that issue is ultimately beside the point.
[62] I must now to turn to the question of whose version of the discussions on 30 January I accept. There is no debate that discussion did occur about potential terms of settlement, and it is Ms Early’s evidence that she gave clear advice about the range of remedies available. Ultimately according to Ms Early Ms Curtis said she wanted to resolve the matter and was happy to seek the right to resign, a statement of service and deed of release stating that either party cannot make disparaging remarks about each other. Ms Early says she confirmed this with Ms Curtis, and Ms Curtis confirmed this was the outcome she was seeking from conciliation. 70 As set out above Ms Curtis’s version of this first conversation is completely at odds with Ms Early’s.
[63] Ms Curtis claims in the second conversation on 30 January she said words to the effect, “that is not good enough”, “its pathetic”, “its not enough mate”, and that I “have to seek some advice” to Ms Early. If this claim were true then a reasonable question arises as to why Ms Curtis chose the words she did in sending two emails a week later attached to her statement 71 on Tuesday 7 February 2012 at 14:31 which said;
“Hi Erina,
No not proceed, no not do anything further I am seeking legal advice
If any enquiries call me on ......”
A second email was sent by Ms Curtis at 15:28 on the same day as follows:
Hello Erina,
Matter No U2011/14723 please do not proceed any further, seeking legal advice.
Thank you if any enquiries you can call me on .....”
[64] In my view the period of approximately a week between the conversations on 30 January 2012, and the language used in the emails of 7 February tends more to support Ms Early’s version that the matter was not raised on 30 January 2012.
[65] The Respondent argues that it not plausible that Ms Curtis, an employee of approximately 10 years service, who it is common ground initially indicated had said she wanted her job back, would then change her mind to the extent that she would have agreed to settle the matter with no monetary compensation. Further the Respondent argues Ms Early failed to take the time to properly explain to Ms Curtis with some degree of clarity and thoroughness exactly what was going on. 72
[66] However there has been no evidence of any reason or motive for Ms Early as an experienced Industrial Officer to misrepresent the instructions of Ms Curtis. I find it difficult to accept that Ms Early would have done so. Ms Early presented her evidence in a direct, consistent and forthright manner, and it would appear has considerable experience in handling negotiations in unfair dismissal matters, as compared to Ms Curtis whose evidence was inconsistent and at times contradictory. I include in this the inconsistency of the evidence of Ms Curtis regarding the impact of her medical condition. I have also considered my preference set out above for the evidence of Ms Early over Ms Curtis concerning whether Ms Curtis knew of the conciliation conference on 30 January beforehand.
[67] For these reasons on balance I prefer the version of the two conversations on 30 January as given by Ms Early. I accept that Ms Curtis did give clear instructions as to the terms of a proposed settlement. Ms Early confirmed those with Ms Curtis and proceeded to offer those terms to Mr Crawley who subsequently accepted them.
[68] The question of whether there was or was not a binding settlement agreement is a question of fact. That the draft Deed was never signed by the Applicant does not mean the Applicant cannot be bound by an agreement if made. The High Court in Masters v Cameron made this clear in determining where parties reach agreement on terms of a contractual nature and agree the negotiations will be dealt with by a formal contract, that the first two categories of agreement described in Masters v Cameron will be binding despite the absence of a signed Deed.
[69] It is my view that the subsequent draft settlement agreement prepared by Mr Roffey went further than the terms of the settlement reached on 30 January in that it included terms beyond those the Applicant had instructed Ms Early to offer to the Respondent. In that regard I specifically refer as an example to the breadth of the mutual release clause in the draft deed prepared by Mr Joffey. 73 In A.Zoiti-Licastro v Australian Tax Office74a Full Bench of the Australian Industrial Relations Commission considered circumstances where there was argument concerning whether a mutual release clause had in fact been agreed or not as part of settlement negotiations, and the impact of that argument on the question of whether an agreement had been concluded.
[10] We are satisfied that there was no relevant error in the Senior Deputy President’s reasoning on the release issue. It would be most unlikely, as the Senior Deputy President himself pointed out, that the ATO would pay money in settlement without receiving a release of some kind. Furthermore the release contained in the settlement agreement drafted by the ATO’s solicitors was in substance a release of the kind which Mr Dowling had advised the appellant she would have to accept in order to settle the case. It is notnecessary that we comment further on the Senior Deputy President’s decision, because, regardless of the breadth of the release, nothing arising in connection with the question of the release casts doubt on the conclusion that there was a completed agreement. (my emphasis added)
And further in the same decision;
[12] It is clear that the settlement agreement drafted by the ATO’s solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant’s focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005. (my emphasis added)
[70] On the basis of the views expected by the Full Bench in A.Zoiti-Licastro v Australian Tax Office where an agreement is reached and subsequently a draft Deed prepared which may go beyond the terms of the agreement reached, it does not mean the agreement reached is not binding. In such circumstances the party objecting to the inclusion of such terms in the draft should indicate their rejection of those terms that were not part of the agreement actually made.
Conclusion
[71] I have considered all of the evidence including each of the reasons set out in the Respondents written submissions to argue no binding agreement was reached however I conclude a binding settlement agreement was reached between the parties in this matter and that the Applicant has sought to renege on that agreement. I am satisfied that Ms Early was the Applicants authorised representative at the time the settlement was made and had authority to negotiate the settlement on her behalf.
[72] Based on my findings set out above it follows that I accept there was an offer and acceptance. I also am satisfied the union did not act beyond its authority and did not mistake Ms Curtis’s instructions and that the acceptance of the offer by Mr Crawley for the Respondent did not mistake the terms of settlement despite Mr Roffey subsequently drafting a deed which went beyond those terms. I am satisfied there was a meeting of the minds and also that the agreement was not void or voidable. I do not accept the consideration as being illusory or totally inadequate as it is common for unfair dismissal matters to settle on similar terms and the terms in this case have a tangible value. As previously discussed I do not accept Ms Curtis was impaired to the extent that she did not have capacity to give full, proper and reasoned instructions. I am satisfied Ms Early as Senior Industrial Officer of United Voice gave advice to Ms Curtis and she made an informed decision based on that advice. I am also satisfied the agreement did not lack certainty and did not result in the Respondent being unjustly enriched.
[73] It is my view the nature of the agreement was of a kind falling within the first category of agreement described in Masters v Cameron, 75 in that the parties had “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.”
[74] Besanko J in a recent Federal Court decision of Australian Postal Corporation v Gorman 76 said as follows;
1. There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, 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.
1. Although the Australian Industrial Relations Commission was dealing with s 111(1)(t) of the Workplace Relations Act 1996 (Cth) in Zoiti-Licastro v Australian Taxation Office the considerations which led it to conclude that the Senior Deputy President had the power to dismiss an application on a summary basis on the ground that there was a binding settlement agreement apply with equal force under the Act.
[75] Based on the authority in Australian Postal Corporation v Gorman Fair Work Australia is empowered to dismiss an application such as this one as the settlement agreement extinguishes the pre-existing cause of action and further pursuit of the matter would be frivolous or vexatious or without reasonable prospects of success. That is my finding here. If I were unable to dismiss the application on the basis of s.587(1)(b) or (c) I would do so relying on the broad discretion in s.587(1).
COMMISSIONER
Appearances:
Mr B Taylor Counsel for Applicant
Mr S Roffey for the Respondent
Hearing details:
2012
BRISBANE
JUNE 18
1 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 6
2 Draft Deed of settlement
3 Masters v Cameron [1954] 91 CLR 353
4 Rebecca Tomas v Symbion Health [2011] FWA 5458
5 MsToni Potter v Darwin City Council,[2010] FWA 6129.
6 Gorman v Australia Post[2010] FWA 7423.
7 Australian Postal Corporation v Gorman and Fair Work Australia. [2011] FCA 975.
8 Exhibit 3 Statement of Ms Erina Early Paragraph 53
9 Transcript PN 399-409
10 Transcript PN 426
11 Exhibit 4 Statement of Ms Bridget Jane Curtis Paragraphs 19-24, 34, 39, 51, 66
12 Transcript PN 432
13 Transcript PN 441
14 Transcript PN 445-449
15 Transcript PN 507-510
16 Exhibit 4 Statement of Bridget Jane Curtis BJC 1 page 4
17 Transcript PN 530
18 Transcript PN 551-557
19 Exhibit 4 Statement of Bridget Jane Curtis BJC 1, MIMS CMI - Epilim page 3
20 Transcript PN 573-574
21 Transcript PN 696-709
22 Transcript PN 595
23 Transcript PN 722
24 Exhibit 1 Statement of Mr Frank Crawley Paragraph 4
25 Exhibit 2 attachment 1
26 Exhibit 1 Statement of Mr Frank Crawley Paragraph 9-14
27 Exhibit 1 attachment 1
28 Exhibit 1 Statement of Mr Frank Crawley Paragraph 17 attachment 4
29 Transcript PN 62-64
30 Exhibit 2 Statement of Ms Erina Early dated 23 May and Exhibit 3 Statement of Ms Erina Early dated 8 June 2012
31 Transcript PN 344
32 Exhibit 1 Statement of Mr Frank Crawley Paragraph 9
33 Transcript PN 131
34 Exhibit 4 Statement of Bridget Jane Curtis Paragraphs 40-44
35 Exhibit 3 Statement of Ms Erina Early Paragraph 43
36 Exhibit 1 Statement of Mr Frank Crawley Paragraph 11-14
37 Transcript PN 133
38 Respondent submissions appendix 1
39 Transcript PN 155
40 Exhibit 3 Statement of Ms Erina Early Paragraph 47
41 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 51
42 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 54
43 Exhibit 3 Statement of Ms Erina Early Paragraph 55
44 Exhibit 4 Statement of Bridget Jane Curtis BJC-3
45 Exhibit 3 Statement of Ms Erina Early Paragraph 53
46 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 56
47 Exhibit 2 Statement of Ms Erina Early dated 23 May Paragraphts16-22
48 Exhibit 3 Statement of Ms Erina Early Paragraph 56
49 Transcript PN 603
50 Transcript PN 616
51 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 62
52 Transcript PN 633
53 Transcript PN 634-637
54 Transcript PN 560
55 Transcript PN 173
56 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 60
57 Transcript PN 620-623
58 Transcript PN 169
59 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 61
60 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 63
61 Transcript PN 180-182
62 Transcript PN 190-197
63 Exhibit 2 Statement of Ms Erina Early dated 23 May Appendix 1
64 Exhibit 1 Statement of Mr Frank Crawley Paragraph 36-40
65 Exhibit 1 Statement of Mr Frank Crawley Paragraph 45
66 Exhibit 3 Statement of Ms Erina Early Paragraph 65-68
67 Exhibit 3 Statement of Ms Erina Early Paragraphs 69,70,71
68 Exhibit 4 Statement of Ms Bridget Jane Curtis Paragraphs 70-77
69 Exhibit 2 Statement of Ms Erina Early dated 23 May Appendix 1
70 Exhibit 2 Statement of Ms Erina Early dated 23 May Paragraphs 21-34
71 Exhibit 4 Statement of Ms Bridget Jane Curtis BJC 4
72 Transcript PN 866
73 Exhibit 1 Statement of Mr Frank Crawley Appendix 3
74 A.Zoiti-Licastro v Australian Tax Office PR967544
75 Masters v Cameron
76 Australian Postal Corporation v Gorman
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