Colin Purnell v Australian Nuclear Science and Technology Organisation

[2015] FWC 7367

[2015] FWC 7367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Purnell
v
Australian Nuclear Science and Technology Organisation
(U2015/5473)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Colin Purnell alleged that the termination of his employment by the Australian Nuclear Science and Technology Organisation (ANSTO) was unfair.

[2] Directions were issued to Mr Purnell to file material in support of his application by 29 June 2015. Mr Purnell sought and was granted extensions of time to file his material. On 3 August 2015 Mr Purnell advised the Fair Work Commission that his lawyers should have submitted his material and asked for a copy to be provided to him. Mr Purnell was advised that nothing had been filed and his lawyers had not filed a notice of representation with the Commission. On 5 August 2015, Mr Purnell sought a further extension of time. On 6 August 2015, ANSTO filed an application to dismiss Mr Purnell’s application due to his ongoing failure to comply with directions.

[3] The matter was listed for non compliance on 7 August 2015. On 7 August 2015, Turner Freeman contacted the Commission and advised that they now represented Mr Purnell and later that morning Mr Purnell advised that Turner Freeman no longer represented him.

[4] At the non compliance hearing, directions were varied to give Mr Purnell until 31 August 2015, to file his material.

[5] On 28 August 2015, new solicitors for Mr Purnell wrote to the Commission advising that the matter had settled and he would not be filing any material. This settlement was confirmed by ANSTO. On 31 August 2015, Mr Purnell advised that the matter had settled.

[6] On 9 September 2015, Mr Purnell’s solicitors ceased to represent him.

[7] On the next day ANSTO advised that it wished to press its s.399A application as Mr Purnell had not complied with the directions. On the same day ANSTO asked Mr Purnell if he intended signing the terms of settlement and Mr Purnell advised that he had rejected ANSTO’s offer. Mr Purnell advised the Commission on 18 September 2015, that the matter had not settled.

[8] In that email Mr Purnell advised that his lawyers no longer acted for him. And on the same day advised that he wished to proceed with his application.

[9] On 23 September 2015 ANSTO filed another s.399A application. On 28 September 2015 I caused a letter to be sent to Mr Purnell in which he was directed to file material in opposition to the s.399A application by 5 October 2015.

[10] At the hearing ANSTO sought the dismissal of Mr Purnell’s application under both s.399A(1)(b) and (c).

Section 399A(1)(c)

[11] ANSTO further submitted that a binding agreement had been reached with Mr Purnell and therefore his application should be dismissed because he has failed to file a notice of discontinuance.

[12] It is clear from the material provided to the Commission that in August 2015 the parties reached an agreement in principle to resolve the matter. ANSTO prepared a draft settlement and release agreement and forwarded it to Mr Purnell’s solicitors. His solicitors requested some changes to the proposed draft. There is no evidence before the Commission on which I could conclude that those proposed amendments were accepted by ANSTO. Within a very short period of time Mr Purnell’s solicitors ceased acting for him. A copy of the terms of settlement were then sent to Mr Purnell and that email advised that the payment of the settlement sum was conditional upon ANSTO receiving a signed settlement and release agreement. Mr Purnell did not sign the document and ANSTO did not pay the monies payable under the terms of settlement.

[13] It was submitted that the agreement between Mr Purnell and ANSTO was of first or second type described in Masters v Cameron.

[14] In Masters v Cameron 1the High Court held that when parties reach agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, that the case may belong to any of three classes:

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 there 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

3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.” 

[15] In the first two classes the High Court held that there was a binding contract.

[16] I am unable to conclude on the material before the Commission that a binding agreement was reached between the parties. However even if such an agreement had been made I would not exercise my discretion and dismiss Mr Purnell’s application in circumstances where Mr Purnell has not been paid the monies payable under the terms of settlement.

[17] I therefore dismiss the s.399A(1)(c) application.

Section 399A(1)(b)

[18] s.339A(1)(b) provides the Commission with the discretion to dismiss an application if an applicant has unreasonably failed to comply with a direction of the Commission.

[19] Mr Purnell has failed to comply with two sets of directions.

[20] ANSTO submitted that Mr Purnell had repeatedly failed to comply with directions and Commission and he was on notice that if he failed to comply with the directions issued by Commissioner Wilson on 7 August 2015, his application may be dismissed.

[21] While I accept that Mr Purnell has not complied with directions of Commission, it is clear that in relation to the directions that required him to file material by 31 August 2015, the parties agreed that because there was an in principal agreement there was no requirement for Mr Purnell to file his material. I therefore am unable to find that the failure to comply with the latest directions was unreasonable.

[22] Mr Purnell was initially represented by his union and subsequently by lawyers. While ANSTO submitted that there was no evidence that Mr Purnell was represented by Turner Freeman the Commission file discloses that Turner Freeman were at least for a short period of time formally representing Mr Purnell. While he failed to comply with the original direction, ANSTO at the non compliance hearing, did not oppose Mr Purnell being given an extension of time to file his material.

[23] I am unable therefore to find that his failure to comply with the original direction was unreasonable.

[24] However I am concerned with the delay in this matter and I am concerned that Mr Purnell does not recognise that it is his responsibility to file his submissions and evidence. I therefore do not propose to dismiss the s.399A(1)(b) application at this time. Mr Purnell is directed to file and serve his evidence and submissions by close of business on 6 November 2015. If Mr Purnell does not comply with this direction, without an acceptable explanation his application will be dismissed without a further hearing. Mr Purnell is to understand that not being able to engage a representative will not be considered an acceptable explanation.

DEPUTY PRESIDENT

Appearances:

C. Purnell on his own behalf.

L. Hogg for the Respondent.

Hearing details:

2015.

Melbourne and Sydney, via telephone link:

October 26.

 1 (1954) 91 CLR 353

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