Christopher Chambers v CA Investigations Pty Ltd

[2020] FWC 4704

[2020] FWC 4704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Chambers
v
CA Investigations Pty Ltd
(U2020/6449)

COMMISSIONER SIMPSON BRISBANE, 3 SEPTEMBER 2020

Application for an unfair dismissal remedy – whether binding settlement agreement was reached – application has no reasonable prospects of success – application dismissed.

[1] This matter concerns an application made by Mr Christopher Chambers (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by his employer, CA Investigations Pty Ltd (the Respondent).

[2] The matter was listed for a conciliation before a Fair Work Commission conciliator on 15 June 2020, however it was not resolved and was subsequently allocated to me on 7 July 2020. The matter was listed for a conference before me on 16 July 2020.

[3] On 16 July 2020 my chambers received an email from the Applicant’s representative, Mr Stephen Gaffney of Unfair Dismissal Experts Pty Ltd, that read as follows:

“Hi all

We request to vacate the conference listed for 3pm today (16/07) as the parties have reached an agreement to settle the matter.

Kind regards…”

[4] On the same day the Respondent’s representative Mr Mark Curran of DWF Australia confirmed it consented to the adjournment and the conference was therefore vacated.

[5] On 6 August 2020, my chambers received an email from the Applicant that stated:

“I totally reject all settlement! Time has passed for all settlement I’ll be pursuing this further.”

[original text kept]

[6] The same day my Associate attempted to contact Mr Gaffney for an update on the matter, however the call was not answered, and a voicemail message was left. On 12 August 2020 my Associate again contacted Mr Gaffney, who was available and advised that he no longer acted for the Applicant. Mr Gaffney said that although there was no executed deed, the Applicant did agree to a settlement, however has since rejected it because he did not realise the amount would be subject to tax. Mr Gaffney confirmed that the Applicant told him that the offer was accepted.

[7] On 19 August 2020, Mr Curran sent an email to my chambers containing three email attachments and advising that it was the Respondent’s position that the proceedings had been settled.

[8] The first attachment was a letter of offer dated 15 July 2020 from the Respondent that was addressed to Mr Gaffney. The second document was a letter dated 16 July 2020 from Mr Gaffney to Mr Curran that read as follows:

“Dear Mark,

We refer to your email and offer of 15/07.
We have been instructed to accept the proposed offer. Please prepare the deed and send through a copy to us.

Kind regards…”

[9] The third attachment from Mr Curran was a Deed of Release and settlement sent to Mr Gaffney on 21 July 2020.

[10] I listed the matter for a Mention on 20 August 2020 by telephone. The Applicant appeared on his own behalf and Mr Curran appeared on behalf of the Respondent.

[11] During the hearing, the Respondent maintained its position that the offer put to the Applicant on 15 July had been accepted and the matter was therefore settled. The Applicant disputed that he had agreed to the settlement amount put forward by the Respondent on 15 July 2020 and was of the view settlement had not been reached.

[12] During the proceedings, it became apparent that the correspondence sent to chambers from Mr Curran on 19 August 2020 containing the email attachments had been copied to Mr Gaffney, but not to the Applicant, as the Respondent was not aware Mr Gaffney had ceased to act for the Applicant.

[13] I advised the parties in the hearing that a copy of the three email attachments would be forwarded to the Applicant after the hearing, and that the Applicant would be given an opportunity to make submissions as to why the emails did not indicate a settlement had been reached.

[14] There appeared to be some confusion from the Applicant in relation to his representation in the matter. The Applicant requested that the documents be sent to his lawyer. I explained to the Applicant that the difficulty was that Mr Gaffney had advised the Commission he no longer acted for the Applicant. I made it clear that the Applicant would be sent a copy of the emails relied on by the Respondent, and that if he wanted to make any submissions he would have a chance to do so by Friday 28 August 2020.

[15] The documents were subsequently forwarded from my chambers to the Applicant and Mr Gaffney. On 25 August, an email was received from Mr Gaffney that read as follows:

“We confirm that we no longer act on behalf of Mr Chambers per the attached F54 notice. We also confirm that we acted in accordance with our client’s instructions at all times, as reflected in the correspondence.”

[16] That same day, an email was received from the Applicant stating:

“I don’t understand any of this. Please send it to my lawyer “

[17] To date, no submissions have been received from the Applicant in response to the correspondence relied on by the Respondent that a settlement had been reached.

Consideration

[18] Section 587 of the Act provides as follows:

“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.”

[19] The High Court has provided clarity as to circumstances when a binding contract will exist, as follows 1:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be 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. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain 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. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.”  2

[20] The Federal Court has considered that the Commission has the power to dismiss an unfair dismissal application under s.587where a binding settlement agreement exists. That is because the binding settlement agreement extinguishes the pre-existing cause of action and the continued pursuit of the application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success. 3 

[21] I am satisfied that a binding settlement agreement was reached between the parties.

[22] The email correspondence relied on by the Respondent indicates that the parties negotiated and agreed on a resolution to the Applicant’s application. It appears an offer was made in writing by the Respondent, which was accepted in writing by the Applicant’s representative.

[23] This finding is further supported by the conduct of the respective parties, including that the Applicant’s representative requested that the conference on 16 August 2020 be vacated.

[24] I have had regard to the Applicant’s assertion that he did not agree to the settlement amount in the Respondent’s offer dated 15 July 2020. In the absence of any submissions or evidence from the Applicant, I am not satisfied that he did not accept the offer. The email from Mr Gaffney dated 16 July clearly refers to the offer from the Respondent made on 15 July and accepts that offer. There is no evidence before me to suggest that Mr Gaffney did not act in accordance with his client’s instructions.

[25] The fact that the Applicant has not filed a notice of discontinuance does not necessarily assist in demonstrating that his application has reasonable prospects of success in the circumstances.

Conclusion

[26] Where there is a binding settlement agreement, the Commission does have the power under s.587(1)(c) of the Act to dismiss an unfair dismissal application as the settlement agreement extinguishes the pre-existing cause of action and it is plain that further pursuit of the matter would have no reasonable prospects of success.

[27] I am satisfied that a binding settlement agreement was reached between the Applicant and Respondent. For the above reasons, I have determined that the application should be dismissed on the basis that it has no reasonable prospects of success. I order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Masters v Cameron [1954] 91 CLR 353.

 2   Ibid at 360.

 3   Australia Postal Corporation v Gorman [2001] FCA 975; see also Curtis v Darwin City Council[2012] FWAFB 2021.