Csontos v QT Hotels & Resorts Pty Ltd

[2016] FWC 3632

[2016] FWC 3632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Csontos
v
QT Hotels & Resorts Pty Ltd T/A QT Resort Port Douglas
(U2015/5045)

COMMISSIONER BOOTH BRISBANE, 10 JUNE 2016

Termination of employment – application to dismiss.

[1] Mr Robert Csontos was dismissed from his position as a chef with QT Hotels & Resorts Pty Ltd, which in this case trades as QT Resort Port Douglas (QT). He had worked for the employer for just over 6 months.

[2] The matter was the subject of the Fair Work Commission’s (the Commission) usual dispute resolution processes, including a conference I conducted on 14 January 2016. At the conference terms of settlement were discussed.

[3] My associate then sent by email a copy of the terms of settlement (the Deed) which included a settlement of the matter for $1000, with directions about execution of the Deed and included a notice of discontinuance.

[4] Mr Csontos signed neither the Deed nor the notice of discontinuance.

[5] QT however paid the agreed amount.

[6] Subsequently Mr Csontos has indicated that he would settle the matter for $3000 or wished to proceed to hearing.

[7] QT brought an application seeking to have Mr Csontos’ application dismissed on the grounds that Mr Csontos entered into a binding settlement agreement, effectively bringing the matter to an end.

[8] As discussed below, this is not a case in which there are “facts, the existence of which are in dispute”. 1 Accordingly the matter may be dealt with on the papers, and in the circumstances, I formed the view this was appropriate.

Background

[9] Mr Csontos lodged his application on 22 April 2015. A number of jurisdictional points were dealt with and over subsequent months the Commission attempted to progress the matter and ultimately it was listed for hearing in February 2016.

[10] I listed the matter for Directions on 14 January 2016. The parties appeared by telephone. Mr Csontos was assisted by an interpreter. QT made a verbal offer to settle the matter on terms including payment to Mr Csontos of $1000. Mr Csontos accepted the offer.

[11] Later that day, the written terms were sent by my associate to the parties in a form including provision for each to sign.

[12] QT filed a signed copy of the settlement document with the Commission and served it by email on Mr Csontos on 15 January 2016, and on 18 January 2016 deposited $1000 into Mr Csontos’ bank account.

[13] Mr Csontos did not file or serve a signed copy of the document nor file a notice of discontinuance.

[14] My associate sought to follow up with Mr Csontos but no signed deed was provided.

[15] In the circumstances I listed the matter for a further conference on 10 March 2016. Again the parties appeared by telephone, Mr Csontos again being assisted by an interpreter. The following exchange took place during that conference on transcript:

PN19 THE COMMISSONER: Right. My understanding is that you have – we reached an agreement although you had not signed the agreement at the last conference.

PN20 MR CSONTOS: Yes, that’s how it is.

PN21 THE COMMISSIONER: That is your understanding also?

PN22 MR CSONTOS: Verbally, yes, but not in writing.

[16] Additionally, as to difficulties that may have resulted from Mr Csontos having received the settlement money but not having signed the deed, the following exchange occurred:

PN29 THE COMMISSIONER:...This is difficult to know how to proceed because you have received the money in return for discontinuing the application.

PN30 MR CSONTOS: Yes, I believe that the transfer money was a contingent on my signature. So it's not finished until I sign.

[17] Mr Csontos later indicated in transcript 2 that he seeks an amount of $3000, and that the money offered to him was inadequate.

[18] Both parties indicated that they wished to obtain legal advice and the matter was set down for a further Directions conference on 24 March 2016 when I indicated that I would ask them both what they wished to do with this matter.

[19] At that conference Mr Csontos indicated that unless he was paid $3,000 he would like to have a hearing. 3 Additionally he offered to return the $1,000 paid to him.

[20] QT confirmed that it would be making an application to dismiss.

[21] I gave directions that Mr Csontos repay the $1000 pending determination of the matter, and set down a timetable for the parties next steps to take.

[22] QT made application on 12 April 2016 for the matter to be dismissed on the basis of settlement having been reached on 14 January 2016. Mr Csontos on 29 April 2016 emailed stating:

With reference to [QT’s] letter dated 12/4/2016, I am requesting the commissioner to dismiss [the] application.

[23] However, he provided no submissions as to why the matter should be dismissed.

[24] Subsequently I provided a copy of the transcripts of both 10 and 24 March 2016 and requested the parties to address any matters in the transcript and specifically brought to their attention PN22-PN29. Mr Csontos was invited to seek a translation of the transcript. The parties were also asked if the matter could be decided on the papers.

[25] QT agreed to the matter being decided on the papers by email dated 9 May 2016. Mr Csontos did not respond. However, QT advised the Commission in submissions on its application to dismiss that Mr Csontos did repay the $1000 as directed.

[26] On 16 May 2016 the Commission again contacted the parties and again invited submissions, reminding Mr Csontos of the offer for a translation of the transcript, and stating:

If there are no submissions provided by 20 May 2016 the matter will be decided on the papers on the material presently before the Fair Work Commission.

[27] Mr Csontos made no submissions in response to the transcripts or whether the matter could be decided on the papers.

Are there facts in dispute?

[28] The transcript reveals :

• Mr Csontos verbally agreed to the terms of settlement, by way of payment of $1000;



• he now seeks $3,000 to settle the matter or would prefer to proceed to a hearing; and



• he considered the matter not finished until he signed.

[29] Having been given 2 opportunities to comment on it, he did not do so. That is, he has not resiled from the views expressed on the transcript, nor has he not disputed the accuracy of the transcript or sought to make any further submissions.

[30] Therefore the transcripts provide an understanding of the position of Mr Csontos.

[31] What can be concluded is, first, Mr Csontos verbally agreed to a $1000 settlement, but later sought to resile from that, seeking $3000 instead and that he considered the matter had not finished until he signed the deed.

[32] What is in dispute is the legal effect of those undisputed facts.

[33] Given that there are no disputed facts, only a dispute as to the legal effect of those facts, it is appropriate for QT’s application to be determined ‘on the papers’. 4

Is there a binding settlement?

[34] In Tomas v Symbion Health, 5 a dismissed employee agreed orally to terms of settlement at conciliation, but two weeks later failed to sign the ‘deed of release’ documenting those terms. Gooley C (as she then was) said as follows:

[44]In Masters v Cameron 6the 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.” 7

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

[46]I find in this case that the parties made an agreement as described by the High Court in example (2) above. The parties intended and did settle Ms Tomas’s claim for unfair dismissal at the conciliation conference on the terms described by the Respondent.

[35] The Commissioner dismissed the application on the basis of that finding noting as follows:

[59]In this matter I find that section 587 empowers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 provides Fair Work Australia with a broad discretion to dismiss an application.

[36] In Howey v Mars Australia Pty Limited t/a Mars Petcare Australia, 8Sams DP found that the parties had reached binding settlement terms, despite the applicant declining to sign the documented version, and held:

[75]The authorities make plain that the existence of a binding settlement between parties, permits a conclusion that an application should be dismissed on a summary basis, or as Besanko J described in Australian Postal Corporation v Gorman as ‘a valid and effective accord and satisfaction’ which ‘extinguishes the pre-existing cause of action’. In addition, I respectfully agree with Gooley C’s comments in Tomas v Symbion Health …

[97]… The finding of a binding settlement between the parties constitutes a sufficient basis for FWA to dismiss this matter, pursuant to s 587(1) of the Act. An order to that effect will accompany the publication of this decision.

[37] See also the decision of a Full Bench in Curtis v Darwin City Council. 9

[38] A key issue in this matter is whether the parties intended to be bound by a verbal agreement reached during the conference of 14 January 2016, or whether the parties intended for the agreement to be put into writing and signed, as discussed in the extract above from the High Court’s decision in Masters v Cameron.

[39] As that case makes plain, the question of whether there is a binding agreement or not depends upon the intention disclosed by the language the parties have used. 10 It is important to understand that a binding settlement agreement in this Commission does not have to be made in writing and can be made completely by spoken words or conduct engaged in by the parties.

[40] This is not a case in which the parties agreed that the settlement would only be binding once documented formally and signed: the evidence is to the contrary. That is, QT indicated that it considered it had reached agreement and Mr Csontos indicated that he understood that he had reached a verbal agreement during the conference.

[41] While Mr Csontos now wishes to renege on the agreement and have his claim determined, the legal effect of that verbal agreement is that the parties have settled the matter.

Conclusion

[42] I find that Mr Csontos entered into a binding settlement agreement orally on 14 January 2016, and accordingly the cause of action for unfair dismissal relief no longer exists.

Orders

[43] Orders will issue requiring QT to pay Mr Csontos the sum of $1000 agreed between the parties, and consequently dismissing Mr Csontos’ application.

COMMISSIONER

 1   Gutzeit v Liquorland (Qld) Pty Ltd T/A Spirit Hotels Liquorland (South East Queensland) [2015] FWCFB 1257 at paragraph at [22].

 2   Transcript dated 10 March 2016 at PN82

 3   Transcript dated 24 March 2016 at PN111

 4   Gutzeit, above

 5   [2011] FWA 5458

 6 91 CLR 353

 7 91 CLR 353 at page 360

 8   [2012] FWA 6259

 9   [2012] FWAFB 8021

 10 91 CLR 353 at page 362

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