Cochrane v Neil Leslie Latcham

[2016] FWC 1222

[2016] FWC 1222

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephanie Cochrane

v

Neil Leslie Latcham T/A Benowa Mansions Periodontal Practice

(U2015/13628)

DEPUTY PRESIDENT GOOLEY	MELBOURNE, 26 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        On 15 October 2015, Ms Stephanie Cochrane made an application for remedy for

unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Cochrane’s

employment had been terminated by Neil Leslie Latcham T/A Benowa Mansions Periodontal

Practice on 30 September 2015.

[2]        The matter was the subject of conciliation on 17 November 2015 where parties

reached an in principle agreement following the conciliation.

[3]        On 24 December 2015, Benowa’s representative advised that the Deed of Release had

still not been executed by Ms Cochrane and she had yet to file a Notice of Discontinuance.

[4]        On 21 January 2016, Benowa made an application under section 399A of the Act to

dismiss Ms Cochrane’s application on the grounds that Ms Cochrane had unreasonably failed

to discontinue her application after a settlement agreement had been concluded.

[5]        On 22 January 2016, Ms Cochrane was sent correspondence informing her of

Benowa’s section 399A application. Ms Cochrane was directed to file submissions and other

documentary material in respect of Benowa’s application by close of business, on 1 February

2016. Ms Cochrane was advised that if she failed to comply with this direction, her

application would be dismissed.

[6]        On 9 February 2016, Ms Cochrane was sent email correspondence requesting a

response by 16 February 2016 and advised that if she didn’t respond, a decision would be

made on the papers.

[7]        Numerous phone and email messages have been sent to Ms Cochrane requesting she

contact the Commission.

[8]        Ms Cochrane has not contacted or filed any material with the Commission.

[2016] FWC 1222

[9]        Section 399A of the Act provides as follows:

399A	Dismissing applications
(1)	The FWC may, subject to subsection (2), dismiss an application for an order

under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held

by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the

application; or

(c) failed to discontinue the application after a settlement agreement has

been concluded.

....

(2) The FWC may exercise its power under subsection (1) on application by the

employer.

(3) This section does not limit when the FWC may dismiss an application.

[10]      Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act. Ms Cochrane did not file any material in opposition to the

application to dismiss.

[11]      Before the Commission can exercise its discretion to dismiss under s.399A(c) there

must be a concluded settlement. (my emphasis) Benowa referred to an in principle

agreement being reached. It was required to draw up terms of settlement. It provided those

terms to Ms Cochrane but then provided revised terms. It did not advise whether the changes

reflected the in principle terms reached. I note a third revised deed was sent to Ms Cochrane

but that only changed the date of compliance. I was not provided with a copy of any of the

terms of settlement,

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[12] In Masters v Cameron, the High Court held that 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 classes. The three classes are:

1.   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.

2.    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.

[2016] FWC 1222

3.   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.

[13]       It was not put that the agreement reached between the parties was one of the first two

kinds referred to in Masters v Cameron was reached at conciliation. I am therefore not

satisfied that a settlement agreement has been concluded.

[14]      Given my earlier decision it is not necessary to determine if a settlement agreement

can be concluded if the parties have not complied with their obligations under the agreement.

[15]      In those circumstances I will not dismiss Ms Cochrane’s application. However I note

that Ms Cochrane has not contacted the Commission since the conciliation including failing to

respond to the directions issued in this matter.

[16]      I will therefore issue directions for Ms Cochrane to file and serve material in support

of her application by noon on 13 March 2016. Ms Cochrane is advised that a failure to

comply with directions of the Commission can result in an application being dismissed.

DEPUTY PRESIDENT

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(1954) 91 CLR 353