Corina James v Roman Catholic Trust Corporation t/a North West Queensland Indigenous Catholic Social Services
[2018] FWC 5563
•4 SEPTEMBER 2018
| [2018] FWC 5563 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application For Unfair Dismissal Remedy
Corina James
v
Roman Catholic Trust Corporation t/a North West Queensland Indigenous Catholic Social Services
(U2018/958)
| Commissioner Johns | SYDNEY, 4 SEPTEMBER 2018 |
Application for an unfair dismissal remedy – agreement to settle the matter – no reasonable prospects of success – application dismissed.
Ms Corina James made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Act) for a remedy for what she alleges to have been an unfair dismissal by her employer, Roman Catholic Trust Corporation t/a North West Queensland Indigenous Catholic Social Services (NWQIC). Ms James’s application for an unfair dismissal remedy was lodged on 25 January 2018 and in it she claimed that she was notified of her dismissal on 15 January 2018, with the dismissal taking effect some 44 days earlier on 3 December 2017.
On 8 February 2018, NWQIC filed its Employer Response to the Application, in which it objected to the Commission exercising jurisdiction in relation to the Application on the basis that Ms James was not dismissed.
On 4 May 2018, I conducted a determinative conference. Ms James appeared for herself and Mr V Bin Dohl and J Coghlan appeared for NWQIC. At the hearing, Ms James gave evidence on her own behalf and Mr V Bin Dohl gave evidence on behalf of NWQIC. Both witnesses were cross examined.
I then invited the parties to consider whether the matter could be resolved in private conference. Mr Bin Dohl advised me that a member assisted private conference would be preferable, and accordingly I adjourned the determinative conference on that basis. Following the private conference, it was agreed that NWQIC would re-employ Ms James as a casual employee and make work available to her, and in return she would discontinue her application for an unfair dismissal remedy.
On 5 May 2018, I drafted and emailed a Settlement Agreement to the parties for them to sign and return to my Chambers. The Settlement Agreement, in broad terms, reflected the agreement reached between them. It provided that Ms James would be restored to casual employment at NWQIC subject to specified conditions (such as her attendance at training/conflict resolution), required her to discontinue her unfair dismissal application, and also included standard confidentiality and non-disparagement terms to apply to both parties in relation to the proceeding.
The Commission’s file reflects that Mr Coghlan emailed the Commission on 28 May 2018 at 1:22pm as follows:
‘Dear Sir,
Below is information from the Manager at Arthur Peterson Diversionary Centre.
In the matter of James v NWQICSS U2018/958 NWQICSS agreed to put Ms James back on as a casual employee.
Ms James has refused all overtures to have her return to our workforce.
We believe we have and are doing everything possible to comply with the agreement facilitated by the Commissioner.
As can be seen however Ms James refusal to communicate impacts upon our business.
Thanks
James’.
Annexed to Mr Coghlan’s above email was an email from Mr Bin Dol to Mr Coghlan dated 28 May 2018 at 10:16am as follows:
‘Good morning James,
I refer to the recent Order by the Fair Work Commission with respect to Corina James being placed back on the casual roster. Corina was rostered on for Saturday 26/5 and Sunday 27/5/18.
I repeatedly tried to contact Corina to have her complete an employment pack and to attend compulsory site induction and fire training prior to her commencement on 26/5.
I attempted to contact Corina as follows:
· Six calls to her mobile phone - Every attempt phone message said was unavailable;
· Discussions with her Partner, Clive Doyle, on Monday 21/5 - Clive advised that he and Corina would come into the centre at 3pm that day. They did not attend at the centre.
· Personal discussion with Clive Doyle on 3 occassions urging him to have Corina contact me in order to prepare for her starting work. On the last occassion he advised me that he didn't know what Corina was going to do.
· Emails and text messages to Clive Doyle, urging him to have Corina contact me.
Corina was rostered for work on Both Saturday and Sunday but did not appear. On Friday 25th, I did not know if Corina would appear at work on Saturday so I had no further option but to roster another staff member on both Corina's shifts.
If you require any further information or clarification then please do not hesitate to contact me.
Kind regards
Vincent Bin Dol’.
On 28 May 2018, I advised the parties that I would list the matter for a telephone Mentions/Directions Hearing at 1.00pm on Thursday, 7 June 2018. At that Mentions/Directions Hearing, Ms James advised that she no longer wanted to recommence her casual employment at NWQIC and instead sought to press her unfair dismissal application. Ms James advised that she sought compensation as a remedy.
The matter was further programmed for a second determinative conference on 27 June 2018. On 26 June 2018, NWQIC sent through additional submissions as follows:
‘Commissioner Johns,
Further to the matter Ms Corina James and NWQICSS U2018/958 NWQICSS would like to present further information of events since the matter was decided on 4 May, 2018.
Both parties came to a resolution that Ms James would return to work and was immediately reinstated to the roster. Since then Ms James has failed to contact NWQICSS despite repeated attempts by the organisation to comply with the resolution agreed to.
NWQICSS contacted the Commission to inform them of their attempts to comply and Ms James avoidance of communicating with them. The matter was listed for mention and a teleconference between the parties held on 7 June, 2018.
At this Commissioner Johns asked Ms James why she had not returned to work. Ms James answered that on the day of the hearing where the resolution for her to return to work was agreed on that she decided she could not return to work.
Ms James had ample time and opportunity to convey this and admitted she made the decision not long after the hearing. Despite this decision she made no attempt to contact NWQICSS who continued trying to comply with the resolution.
This resulted in much time devoted to trying to contact Ms James, rearranging rosters at the last moment and trying to contact casual workers to cover Ms James shift at late notice and additional payments to workers due to the late notice.
Ms James is after payment but as seen by the accompanying file note, as well as time spent at subsequent hearings, NWQICSS has invested much time and finance in trying to comply with the resolution.
We simply ask this be taken into account when making the decision regarding the matter on 29 June, 2018.Thank You
James Coghlan
Staff Services Manager
NWQICSS’
NWQIC also provided a chronology of attempts to contact Ms James:
· ‘14/5/18 – Contacted Clive by phone, Clive advised that he and Corina were in town and would come to the centre at approximately 3pm. They failed to come to the centre.
· 18/5/18 – 9.35am – Emailed Clive requesting a contact number for Corena – Clive did not provide a number.
· 18/5/18 – 10.55am – Text Clive’s phone asking him to provide Corena’s phone number – Did not respond to the text message.
· 18/5/18 – 2.11pm – Contacted Clive requesting contact number or to have Corena contact me – No contact received
· 19/5/18 – 3.11pm – Emailed Clive requesting contact information and outlining my attempts to contact Corena – No reply to the email.
· 19/5/18 – 7.57pm – Clive contacted me by phone about his work travel arrangements. We discussed this and I again asked him to have Corena contact me. Clive told me he would tell Corena to phone me.
· 21/5/18 – Clive came into my office for his travel itinerary. I outlined to Clive all my attempts to contact Corena. Clive advised me that he did not know what Corena was going to do.
· 21/5/18 – Requested contact number from HR/Finance – was provided with 0475 221 139.
· 23/5/18 – Called Corena’s number at 3pm – No answer
· 24/5/18 – Called Corena’s number at 8am, 9am, 1.05pm and 2.45pm – No answer on each occasion
· 25/5/18 – Called Corena’s number at 10.40am – No answer
· 25/5/18 – Arranged for two of the Full Time staff to do overtime to work on the Saturday and Sunday day shifts, which were allocated to Corena.’
On 27 June 2018, I conducted a further brief determinative conference, at which I explained to Ms James that it was open for the Commission to dismiss her unfair dismissal application on the basis that the parties had reached agreement on 4 May 2018. Ms James did not deny that an agreement had been reached, but submitted that she changed her mind following the private conference on the basis that that she did not feel ‘comfortable going back’ to NWQIC due to issues with other staff members.
Was there ever a settlement of the applicant’s claim?
The issue to be determined is whether the parties reached a concluded agreement on 4 May 2018. This is a question of fact. NWQIC submitted that it was agreed that Ms James would recommence her casual employment with the organisation in return for her discontinuance of her unfair dismissal application. The NWQIC contends that it then lived up to its side of bargain and restored Ms James into her employment.
I am satisfied that there was a concluded agreement reached between the parties. All of the evidence supports such a finding, including the actions of the NWQIC after the settlement was reached. I find that there was a concluded agreement under which Ms James would return to work at NWQIC and discontinue her unfair dismissal application.
In Masters v Cameron,[1] the High Court held that where parties who have been 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 the 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 full or more precise but not different in effect.
2. It may be a case in which the parties have completely agreed upon all of 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.
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.
Based on the evidence and material before me, including the repeated attempts by NWQIC to contact Ms James, I am satisfied that the concluded agreement reached between the parties on 4 May 2018 comes within the first class of agreements as outlined in Masters v Cameron. The parties agreed that Ms James would return to casual employment at NWQIS and there was a clear intention that this arrangement commence with immediate effect. Consequently, NWQIC made arrangements to reinstate Ms James into her employment and make roster work available to her.
Notwithstanding the fact that I had drafted a more formal Settlement Agreement for the benefit of the parties, which Ms James did not sign or return to my Chambers, the terms of that Settlement Agreement were in effect discussed and agreed between the parties on 4 May 2018. I am satisfied that despite the addition of standard contractual terms that are common in this jurisdiction, for confidentiality and non-disparagement, the Settlement Agreement was a more precise and formal restatement of the concluded agreement reached between the parties. Consequently, I do not consider it important that Ms James did not sign or returned the Settlement Agreement to my Chambers. The matter had been clearly settled on 4 May 2018.
In any event, the lack of formal signing of the terms of settlement does not alter the legal position of a settlement having been reached. In McKinnon v Eventide,[2] Commissioner Bissett stated at para [48]:
‘The question of whether or not there was a binding agreement reached between the parties is a matter of fact. Even though the Applicant did not sign the agreement arising from conciliation this does not mean that a binding agreement was not reached. The question to be determined is if any agreement of the types described in Masters v Cameron was reached between the parties in conciliation. If the agreement reached is of the first or second category it would, following Masters v Cameron, be a binding agreement’.
As stated above, I am satisfied the concluded agreement between the parties came within the first category of agreements as outlined in Masters v Cameron.
Commission’s power to dismiss an unfair dismissal application
In Australian Postal Corporation v Gorman,[3] the Federal Court (Besanko J) said that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action. His Honour stated:
‘[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.
[32] It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.
[33] 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.’
As is clear from Australian Postal Corporation v Gorman, the Commission has the power to dismiss an application on the basis that it has no reasonable prospects of success if there is a binding agreement between the parties. Section 587(1) 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. (emphasis added).
I am satisfied that an agreement was reached between the parties on 4 May 2018 and that the agreement was of the first type in Masters v Cameron.Consequently, I exercise my discretion to dismiss Ms James’s application under s 587(1)(c) of the Act on the basis that it has no reasonable prospects of success. The settlement agreement, for Ms James to return to casual employment at NWQIC, was a complete answer to Ms James’s claim that she was unfairly dismissed.
While not strictly necessary to make findings as to the merits of the Ms James’s case, even if there was no agreement between the parties, I am not satisfied that Ms James was dismissed. The evidence indicates that NWQIC temporarily removed Ms James from its employment roster until she attended a mandatory conflict resolution session, which in my view, is a lawful and reasonable direction that did not bring about the cessation of employment.
Even if Ms James was successful in proving that her dismissal was ‘harsh, unjust or unreasonable’ pursuant to s.385(b) of the Act, I would offer her no remedy on the basis that NWQIC remained for quite some time ready, willing and able to reinstate her casual employment. I am not satisfied there has been a breakdown in the employment relationship so as to warrant compensation, the remedy Ms James seeks. To the contrary, NWQIC has indicated – on multiple occasions – its readiness to reconcile with Ms James.
Conclusion
For the reasons outlined above, I find that Ms James entered into a binding settlement of her claim and therefore, her application had no reasonable prospects of success. I dismiss her application for an unfair dismissal remedy. An order will be issued accordingly.
COMMISSIONER
Appearances:
Ms James on her own behalf.
Ms J Coughlan for the Respondent.
Hearing details:
4 May and 27 June 2018.
[1] (1954) 93 CLR 353 at [360] – [361].
[2] [2013] FWC 5273.
[3] [2011] FCA 975.
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