Christopher Mark Cooper v Mining One Pty Ltd T/A Mining One Consultants
[2011] FWA 7277
•25 OCTOBER 2011
[2011] FWA 7277 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Mark Cooper
v
Mining One Pty Ltd T/A Mining One Consultants
(C2011/3649)
COMMISSIONER BISSETT | MELBOURNE, 25 OCTOBER 2011 |
Jurisdiction - whether all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
[1] Mr Cooper lodged an application under s.365 of the Fair Work Act 2009 (the Act) on 16 March 2011 claiming he had been dismissed from his employment with Mining One Pty Ltd T/A Mining One Consultants (Mining One) in contravention of the general protections provisions of the Act.
[2] The matter was listed for a conference before me on 6 April 2011. At the conclusion of the conference it appeared that the parties had reached an agreement in settlement of the matters in dispute in relation to the termination of Mr Cooper’s employment. These matters included the general protections claim but also some matters associated with the basis of calculation of payments to Mr Cooper, which were not specifically raised in his application.
[3] The Respondent undertook to draft the terms of the settlement and to provide this to Mr Cooper along with some recalculations of payments made. For the reasons outlined below this is not an exact statement of the outcome of the conference.
[4] Over the following three months correspondence between the parties occurred via my chambers in an effort to finalise the settlement details.
[5] On 20 July 2011 I convened a further conference of the parties concerned at the apparent lack of progress in finalising the matter and following issues raised by Mr Cooper. At this time it became apparent that there were matters associated with the recalculation of payments made and/or reconciliation of leave balances that Mr Cooper said were not in accordance with the 6 April 2011 agreement between him and Mining One, including the extent to which reconciliation of leave should occur.
[6] In an effort to resolve the impasse Mr Farr for Mining One put an offer to Mr Cooper. At the time Mr Farr indicated that if the offer was not accepted by Mr Cooper within a specified period and if Mr Cooper sought that I issue a certificate pursuant to s.369 Mining One would raise a jurisdictional objection to my power to do so and would seek that this objection be dealt with at a hearing prior to a certificate being issued. This decision is concerned with that jurisdictional objection.
[7] Mr Cooper represented himself at both conferences and was represented by Ms Milner in the hearing of this application. Mining One has been represented at all stages by Mr Farr.
Legislation
[8] Division 8 of Part 3-1 of Chapter 3 of the Act deals with compliance with respect to general protection matters. Subdivision A deals with applications involving dismissal. Section 365 deals with making applications, s.366 with the time limits on making applications and s.367 with application fees.
[9] Once an application has been made s.368 sets out the requirements for Fair Work Australia to conduct a conference to deal with a dispute.
[10] Section 369 then provides:
369 Certificate if dispute not resolved
If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.
[11] Section 370 is concerned with advice on court applications and s.371 with court applications.
[12] The ‘dispute’ referred to in s.369 is the dispute subject to the notification under s.365.
[13] A decision to issue a certificate under s.369 of the Act must be based on reaching the requisite satisfaction that reasonable attempts have been or are likely to be unsuccessful in settling the dispute. This decision as to the requisite satisfaction must be made following the conference or conferences held pursuant to s.368. The requisite satisfaction is a discretionary judgement based on an assessment of the circumstances of the case. Such a decision should not be hasty and a conference pursuant to s.368 should not be seen as a mere rubber-stamping exercise necessary to have a certificate issued to enable a court application to proceed.
[14] The matter for resolution here is whether, given the history of this matter, I can be satisfied that all past and future attempts to resolve the dispute have been or will be unsuccessful. Should I reach that conclusion I must issue the certificate.
Section 368 conference
[15] The point of contention between Mr Cooper and Mining One is whether the dispute identified at the conference of 6 April 2011 is settled and in particular whether an agreement was reached between them with respect to the settlement of the dispute.
[16] During the conference the terms of settlement of the matters in dispute between Mr Cooper and Mining One were discussed and seemingly agreed upon. The terms included the destruction of a warning letter, the removal of restraint provisions, non-disparagement, the payment of $1800 for home office, the recalculation of the final separation payment, Mr Farr to provide a breakdown of what had been paid and what would be paid and Mr Farr to draft a plain English agreement. 1
[17] The draft release agreement prepared by Mr Farr included a clause that states that within seven days of the executed agreement by Mr Cooper Mining One would (amongst other things) ‘review the Final Termination Payments to ensure that they were paid at the correct amount, and if there is an Underpayment, to repay Mr Cooper the amount of the Underpayment less appropriate taxation...’ 2
[18] When, on receipt of the draft release agreement, Mr Cooper sought information from Mr Farr as to what the calculation of the underpayment was (he indicated he could not sign the release agreement without knowing the figure) he found that Mining One had undertaken a reconciliation of payments and leave for the entire period of his employment. This included an alleged overpayment to Mr Cooper. Mr Cooper’s evidence is that there was neither discussion of an alleged overpayment nor agreement that this would be included in any recalculation of the settlement payment. He also says that at no time was it suggested that he would sign the release agreement without knowing what the recalculated amount was and that he would never agree to such an arrangement.
[19] Mr Cooper says that the outcome of the 6 April 2011 conference required only that there be a recalculation of the final separation payment and a breakdown of what had and had not been paid with respect to this amount. This went to the issue of whether the $80,000 bonus paid to Mr Cooper had been included in calculations of payment in lieu of notice and leave payments made at the time of termination, as well as payment for a public holiday. On receipt of the draft release agreement Mr Cooper raised his concerns, in particular that he was being asked to sign a release that involved a payment to him prior to the calculation of that payment amount and this was not what was agreed on 6 April 2011.
[20] Ms Stribley was also in attendance at the conference on 6 April 2011 for Mining One. Her evidence is that it was agreed that the final separation payment would be recalculated and that Mining One would provide a calculation of what had been paid and what should have been paid. 3 If there was any wrong payment Mining One would have this calculated at the correct rate.4 Ms Stribley’s evidence is also that at the end of the conference I stated that if there were ‘any issues about the content of the deed or the final payment then this could be raised with [me].’5
[21] Further, Ms Stribley’s evidence is that the reconciliation agreed to on 6 April 2011 inevitably required that all leave and payments made over the period of Mr Cooper’s employment be considered. 6
[22] The evidence on this matter is, unsurprisingly, contradictory. Each party has a different view as to the intent of the terms discussed at the 6 April 2011 conference. There is no evidence that either formulation of the agreement with respect to the reconciliation of payments was discussed in substantial detail prior to the draft release agreement being provided by Mr Farr to Mr Cooper.
Submissions
[23] Mr Farr for Mining One submits that the matters relating to the reconciliation and the general protections claim were resolved between the parties on 6 April 2011 and that there is therefore no jurisdiction to issue a certificate. Mining One says that Mr Cooper’s approach supports the conclusion that there was a concluded agreement (and that Mining One is not honouring part of that agreement). 7 Mr Farr says that this is a totally different proposition as to whether or not I can be satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. Mr Farr submits that agreement in principle was reached; therefore I could not be satisfied that firstly the dispute was not resolved or that all reasonable attempts to resolve the dispute have been unsuccessful.
[24] Mr Farr submits that arising from the conference both parties were working towards an ‘in-principle agreement and it's not unusual for there to be toing and froing in that regard.’ 8 It was submitted that it was implausible that Mr Cooper could have walked away from the conference contemplating that only a narrow reconciliation would be done in the circumstances where there was a discussion around the appropriate rate of pay, pay slips and the incorrect calculation of leave.
[25] The company is of the view that a concluded agreement was reached at that first conference, enforceable against Mr Cooper, which releases the company from all matters.
[26] Ms Milner submits that there was an agreement at the end of the conference of 6 April 2011, which Mining One breached and Mr Cooper then terminated, as was his right, so that the agreement no longer existed.
[27] Alternatively, Ms Milner submits that the parties believed they had made an agreement but the terms were too uncertain or vague such that, at law, no agreement was reached. In this respect Mr Cooper says that the reconciliation was restricted to the January period and his termination payment, not for his entire period of employment.
[28] Ms Milner further submits that Mr Cooper believed that the agreement was, amongst other things, that Mr Farr would recalculate the payments that Mr Cooper says related to his final termination or separation payment. This incorporated a number of things, including pay in lieu of notice, his public holiday pay and what he actually received for the period of work in January. Furthermore, this view accorded with the notes taken by Ms Stribley at the conference.
[29] Ms Milner also submits that it would be unusual for Fair Work Australia to allow a matter to be resolved on the basis that at some future point in time the determination of what was owing, arising from the resolution, would be calculated.
[30] In any event Ms Milner submits that what was in the release agreement did not reflect what had been agreed to. Mining One did not comply with what it had agreed to. In effect it tried to change the terms of what had been agreed and Mr Cooper did not accept those changes.
Conclusion
[31] The matter that I am required to decide upon is if I am satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. If an agreement was reached that would inevitably indicate to me that all attempts to resolve the matter in dispute had been successful. There is a dispute, however, as to whether an agreement actually exists.
[32] In Australian Taxation Office v Annunziata Zoiti-Licastro 9 Senior Deputy President Kaufman considered whether a binding agreement had been made between the parties. Considering the principles of contract law he found that a binding agreement had been made. In reaching this conclusion his Honour found
[31]...In Masters v Cameron 10 the High Court held that a document whereby there was an agreement to sell a farming property “subject to the preparation of a formal contract of sale which shall be acceptable to my solicitors on the above terms and conditions” did not, in the circumstances of that case, constitute a binding contract:
At page 360 Dixon, CJ and McTiernan and Kitto JJ said:
“The first question in the appeal is whether, as Wolff J. considered, this document on its true construction constitutes a binding contract between the respondent and the appellants, or only a record of terms upon which the signatories were agreed as a basis for the negotiation of a contract. Plainly enough they were agreed that there should be a sale and purchase, and the parties, the property, the price, and the date for possession were all clearly settled between them. All the essentials of a contract are there; but whether there is a contract depends entirely upon the meaning and effect of the final sentence in that portion of the document which the appellant signed.
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. Of these two cases the first is the more common. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v. Miller when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. His Lordship proceeded: ‘ . . . as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed’...”
[Footnotes omitted in original]
[32] In this case the agreement was not said to be subject to any conditions. Counsel, acting on the instructions of their respective clients reached a comprehensive agreement the terms of which were intended to be restated in a more precise form. Both principals understood and intended that the Respondent would release the Applicant from all claims arising from her employment save those relating to any injury rights that she might have. The contract was completed. 11
[Footnotes omitted]
[33] Whilst I do not need to determine if a binding agreement has been made in this matter it is apparent that the parties had not reached finality in arranging all of the terms of their agreement. At the very least Mr Cooper did not know what all of those terms were. Further, I do not consider that Mr Cooper and Mining One had completely agreed upon all of the terms of the agreement with no intention to depart from them. Mr Farr for Mining One said ‘toing and froing’ was to be expected. Mr Cooper says, and I accept his evidence on this, that he expected to have the monetary amount resolved and agreed to prior to him finally agreeing to the terms of the release agreement.
[34] As soon as Mr Cooper saw the terms in writing as provided by Mr Farr he indicated that the document did not reflect what he believed was agreed. In this case it seems that whilst there was intent to conclude the agreement this would not occur until it was finally executed which, from Mr Cooper’s perspective, would not be until he knew the calculation result.
[35] On this basis I conclude that it is unlikely that there was an agreement between Mr Cooper and Mining One.
[36] In Brent Gorman v Australia Post 12 a Full Bench of Fair Work Australia considered whether an agreement reached between parties was binding. The Full Bench found that:
Given the intention for the agreement to be committed to writing in a deed of settlement and the reference made to possible “toing and froing” between the parties in the formalisation of the agreement, we doubt that a binding agreement was concluded on that day. Rather a position was reached and the bones of an agreement identified on the basis that the agreement would be finalised, formalised and executed over the following 14 days. The outcome might be characterised in some respects as “an agreement to agree” but it was an outcome that clearly contemplated the conclusion of the agreement with the preparation of a deed containing provisions beyond those specifically dealt with in the discussions on 6 April and the execution of that deed by the parties. In our view, in the circumstances of the present matter it cannot be concluded that a binding agreement was reached by the parties before formal execution of a deed of settlement. 13
[37] Mr Farr indicated that it is not unusual for there to be some toing or froing after an in-principle agreement has been reached. I adopt the approach of the Full Bench in Gorman v Australia Post that an acceptance of the need for there to be some toing and froing in the formalisation of an agreement raises doubt as to whether an agreement has in fact been reached. On this basis I also conclude that it is unlikely that there was an agreement reached between Mr Cooper and Mining One. As the Full Bench observed it is plausible that there was an agreement to agree but no binding agreement.
[38] Mr Cooper clearly contemplated agreement on the monetary amount prior to finalising the agreement. In this respect I agree with Ms Milner that it would be unusual for parties to walk away from settlement discussions thinking that they did not need to agree on the amount attached to a settlement until after the settlement was executed.
[39] This is not a case where the parties have remarkably differing views as to what they believe was agreed between them but more a matter of where the emphasis in the discussion was - a recalculation of the termination payment showing what had been paid and what should have been paid or a recalculation of all payments for Mr Cooper’s full period of employment. Whilst the difference might be subtle to Mr Cooper it was a yawning chasm.
[40] As I mentioned above I do not need to determine if an agreement was in fact made. I do need to decide if I am satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
[41] This matter has continued for some seven months. Further attempts were made to resolve the dispute following the 6 April 2011 conference after Mr Cooper raised concerns with the draft release agreement. These attempts failed.
[42] Taking into account all of the circumstances, including the non-finalisation of an agreement arising from the 6 April 2011 conference or the 20 July 2011 conference, I am satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. I shall, therefore, in accordance with s.369 of the Act, issue a certificate to that effect. That certificate will issue at the time of making this decision.
COMMISSIONER
Appearances:
Ms A Milner for the Applicant.
Mr A Farr for the Respondent.
Hearing details:
2011.
Brisbane and Melbourne:
October 5.
1 Exhibit M1, annexure LS1, page 10; exhibit C1, paragraph 19.
2 Exhibit C1, attachment CMC1, cl.2.1(c).
3 Exhibit M1, paragraph 14 (e) & (f).
4 Exhibit M1, paragraph 14 (f).
5 Exhibit M1, paragraph 17.
6 Transcript PN132.
7 Exhibit M3, paragraph 16.
8 Transcript PN536.
9 PR960411 (20 July 2005).
10 (1954) 91 CLR 353.
11 PR960411 (20 July 2005), [31]-[32].
12 [2010] FWAFB 9413.
13 [2010] FWAFB 9413, [14].
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