Daniel Ropciuc v Australian Red Cross

[2016] FWC 1858

[2016] FWC 1858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Daniel Ropciuc
v
Australian Red Cross
(U2013/17809)

COMMISSIONER WILSON MELBOURNE, 29 MARCH 2016

Application for relief from unfair dismissal remedy - Application to relist application for arbitration - Whether agreement reached in conciliation - Whether reasonable prospect of success.

Introduction

[1] This decision concerns an application in August 2015 by Daniel Ropciuc for the Fair Work Commission to list for arbitration an application he made for an unfair dismissal remedy against his former employer, the Australian Red Cross, in December 2013.

[2] Directions and Preliminary Findings were issued by me in relation to the application in August and December 2015, respectively, and a hearing was convened in March 2016. Illness on the part of Mr Ropciuc has delayed the ability of the matter to be determined sooner.

Background

[3] Mr Ropciuc’s application for unfair dismissal remedy was made to the Fair Work Commission on 23 December 2013.

[4] The application discloses that Mr Ropciuc’s employment with Australian Red Cross commenced on 9 August 2011 and ended with a termination taking effect on 2 December 2013, with the notification of termination itself being given on 5 December 2013.

[5] The application further discloses that Mr Ropciuc had been employed in a nursing position working permanent night duty, and that his termination came after several allegations were put to him by Australian Red Cross which appear to go to his interaction with one or more other employees. An investigation appears to have been conducted into those allegations with the investigator finding three of the allegations (respectively pertaining to harassment of a co-worker about same-sex marriage, and complaints made by the Applicant to management about another employee also working at the Lady Lawley Cottage in Perth, Western Australia) amounted to harassment, with an external complaint made to the Australian Health Practitioner’s Regulatory Authority about a co-worker similarly being found to be harassment.

[6] In referring to those allegations and the status of the investigation, I emphasise that no findings have been made by me either as to the conduct alleged, the findings referred to or the accuracy or fairness of those findings. Mr Ropciuc strongly contests the matters to which I have referred.

[7] Mr Ropciuc was apparently informed of those findings and that Australian Red Cross considered they were sufficient to lead to the termination of his employment, and that he was then given the opportunity to provide such further responses as he desired for the Respondent to take into account.

[8] Mr Ropciuc’s originating application seeks that he be reinstated as soon as possible, however I am unaware of whether he maintains that position now. He is now living in in Romania.

[9] The Respondent’s material filed at the point of lodging its Form F3 - Employer Response Form on 6 February 2014 is extensive.

[10] The material filed by the Australian Red Cross confirms the period of Mr Ropciuc’s employment and the circumstances of his termination. The Respondent asserts that “the working relationship between the Applicant and his employer and co-workers has been irretrievably damaged and reinstatement is not an appropriate remedy”.

[11] The matter progressed as is usual in these matters to a telephone conciliation conference conducted before a staff member of the Fair Work Commission on 6 March 2014.

[12] The file records that Mr Ropciuc appeared for himself and that Mr Steve Joske, Executive Director, Ms Veronica Lillywhite, Human Resources Manager, and Ms Elizabeth McCallum, Senior legal Counsel, appeared for the Australian Red Cross. Again as usual in these matters, the matters discussed within that conciliation conference are not recorded and so are not able to be taken into account by me at this time save and except for two matters. Those matters are, firstly, that the conciliator recorded that the matter had been settled and, secondly, she recorded that the parties had agreed to waive the cooling off period that would otherwise apply to the agreement. The Australian Red Cross accepts what the conciliator recorded as accurate, however Mr Ropciuc contests what is recorded as the outcome.

[13] In any event, the Conciliator, Ms Mullins, wrote to the parties to the conference after its conclusion in the following terms (to the extent that it is relevant);

“Dear Daniel ,Veronica, Elizabeth and Steve

Thank you for your participation in today’s conciliation in the above matter. I confirm that you reached a settlement agreement and I confirm that the terms of settlement are to be sent out by Elizabeth McCallum.

I confirm that the parties have agreed to waive the cooling off period that applied to this agreement.

As this is an agreement reached between the parties, you must send your signed terms to the other party. Do not send a copy to the Fair Work Commission (the Commission) as we do not keep any record of your agreement. You should however keep a signed copy of the agreement for your records.

The Applicant will need to file a Form F50 “Notice of Discontinuance” (see with the Commission, with a copy sent to the Respondent. The Commission will be refund the application fee, if applicable, within four to six weeks of receipt of the Form F50.”

[14] Notwithstanding the request within the above email, a Form F50 - Notice of Discontinuance was never received by the Commission.

[15] After an appreciable time with no contact to the Commission by either party, in August 2015 Mr Ropciuc sought the relisting of his application for unfair dismissal remedy on the basis that it had never been discontinued. He argued in the hearing associated with this decision that he had endeavoured to contact the Fair Work Commission in the time close to the conciliation conference and never heard back from the people or email addresses he made contact with.

[16] Material filed by both parties since Mr Ropciuc sought the relisting of his application discloses that on 10 March 2014 the Australian Red Cross provided to Mr Ropciuc fully drafted Terms of Settlement, entitled “Agreement for Cessation of Employment”. The material filed shows those terms were originally drafted by Ms McCallum and provided by her to Ms Lillywhite on 7 March 2014. In providing the document to Ms Lillywhite, Ms McCallum related the following;

“Veronica

Attached is the Cessation of employment agreement (with attached resignation letter) and the Notice of Discontinuance.

Could you please send these to Daniel (it is better that the communications come through you as I don't intend to negotiate the terms of the agreement: it is as discussed last night) with a request that he:

1 sign the Cessation agreement and the resignation letter and send them back to you, and

2 sign the notice of discontinuance and file it with Fair Work (with a copy to us) once the $9,500.00 has been paid to him.

When you get the signed agreement back please:

1 arrange for Chris to sign it

2 Send a copy to me for my file, and

3 Action the payment.

Thanks for all your help.

Elizabeth”

[17] On 17 March 2014, Mr Ropciuc responded by email to Ms Lillywhite, apparently in relation to the draft Terms of Settlement;

“Dear Veronica,

Please be aware that I will get in touch with you via email after I get the chance to talk to my case manager from the Fair Work Comission. Unfortunately, he has been 'out of office' for several days and I am expecting to get in touch with him during the week. Please also take in consideration that I am currently located in a remote area where there is no internet connection and the mobile phone coverage is very limited. Consequently, I will send you an email after I have spoken to my case manager and as soon as I am able to reach the only internet cafe available in the city.

Regards,

Daniel Ropciuc”

[18] On 7 April 2014, Ms Lillywhite wrote to a number of people, including Mr Joske and Ms McCallum, advising that she had not received a signed agreement back from Mr Ropciuc.

[19] The Terms of Settlement as set out by Ms McCallum and as included in Mr Ropciuc’s material from October 2015, include the following provisions;

• Recitals about the parties and their dispute and that Mr Ropciuc would resign from his employment on the terms of the agreement;



• A statement that Mr Ropciuc would resign his employment effective 2 December 2013;



• A denial of liability on the part of the Australian Red Cross;



• A release by Mr Ropciuc of Australian Red Cross, with a reservation to Australian Red Cross that the agreement may be pleaded as a full and complete defence in relation to certain possible matters;



• A statement of consideration by Australian Red Cross that within 14 days after having had the agreement executed by Mr Ropciuc in other matters, it would make a gross payment to him of $9,500, as well as providing him with a statement of service;



• An undertaking of mutual confidentiality and non-disparagement;



• A requirement that Mr Ropciuc not represent himself to be an employee or otherwise connected with the Australian Red Cross;



• An undertaking that each party will bear their own legal costs;



• An acknowledgement by Mr Ropciuc that he is legally competent to enter into the Terms of Settlement;



• An acknowledgement by Mr Ropciuc that the Terms of Settlement comprise the entire agreement between the parties;



• A statement that the Terms of Settlement are governed by the laws of Western Australia; and



• Further definitions of two terms used within the Terms of Settlement.

[20] Mr Ropciuc says about the draft Terms of Settlement that he never accepted them and that they were prepared after the conciliation conference.

[21] His submissions at the hearing convened by me in March 2016 included that he had not agreed to the settlement terms put forward in the conciliation, or that if he had it had been agreed reluctantly and without advice. Mr Ropciuc’s submissions on these points included that the amount recorded in the terms set out in Ms McCallum’s email above was lower than he was prepared to settle for.

[22] The Australian Red Cross put forward that it negotiated in the conference with Mr Ropciuc, with the amount agreed to by them being neither what they first offered, or what Mr Ropciuc had first sought.

[23] The Respondent submits the following about the conciliation and its product;

“The conciliation was lengthy. After some bargaining, agreement was reached on the following basis:

1 Red Cross would pay the Applicant the sum of $9,500.00 gross in full and final settlement of his claim which would be discontinued once the payment had been made;

2 Red Cross would accept the Applicant's resignation and reverse the reference to dismissal;

3 Mutual confidentiality and non disparagement;

4 Details of the contact person at Red Cross to go in the Agreement;

5 Red Cross would send a Cessation Agreement to the Applicant, together with a Notice of Discontinuance and a form of resignation letter.”

[24] Ms McCallum also includes within the submission she has made on the subject a single page of handwritten notes, apparently taken in the course of the conciliation conference on 6 March 2014. Those notes variously address bargaining over the quantum of the settlement, but appear to refer also to consideration for the eventual amount of $9,500 gross in return for Mr Ropciuc’s resignation and commitments of confidentiality and non-disparagement. The notes also say “contact person would be in the deed”. While the notes also refer to “3 day cooling off period”, in the context of the conciliators closeout email, such may have been mentioned, but it was apparently not a feature of the final arrangement, if there actually was one.

[25] In his submissions, Mr Ropciuc resists that there was ever a concluded agreement.

[26] In particular he submits that he has never accepted the terms of the agreement provided by Ms McCallum, because he never agreed to those terms. He points to correspondence between Ms McCallum and others which suggests that the terms of settlement were the product of discussions not between the Respondent’s officers and Mr Ropciuc, but only between the various officers of the Australian Red Cross. He suggests that the Australian Red Cross regarded the terms of the settlement document as not negotiable, with the terms themselves drafted after the conciliation and without him being involved in those discussions.

[27] He rejects the contention on the part of the Australian Red Cross that there is a legally enforceable settlement. Further, he says that Mr Joske regarded the conciliation process as an opportunity to unilaterally impose terms and conditions and that “the conciliator was present there just to facilitate my employer’s unilateral interests”. Mr Ropciuc also refers, in support of his case that the matter has not been contractually ended, to correspondence from Ms McCallum to the Fair Work Commission on 26 May 2014. The correspondence, apparently addressing the question of whether a Notice of Discontinuance would be forthcoming, advises as follows;

“Dear FWC

Just a note on this matter that was conciliated successfully on 6 April. All relevant documents were forwarded to Mr Ropciuc on 10 March 2014. Mr Ropciuc has not at this stage responded to Red Cross except to advise that he "needed to talk to his case manager from the Fair Work Commission".

The matter therefore appears to be in abeyance. I am sending this for information only.

Regards

Elizabeth McCallum
Senior Legal Counsel”

[28] Mr Ropciuc says about this correspondence that the reference to the matter appearing to be in “abeyance” would indicate that Ms McCallum was aware the matter had not settled.

Relevant precedent

[29] In the matter of Curtis v Darwin City Council, 1 the Full Bench considered the circumstance of whether a matter that had potentially settled in a conciliation conference was entitled to proceed beyond the purportedly settled conference. The Full Bench held that there were three circumstances in which issues of contract may well impinge on the future progression of an apparently settled matter, with it being found;

“[61] At first instance the respondent submitted that the agreement fell into either class 2 or, in the alternative class 1 as identified in Masters v Cameron. In that case 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 deal 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.

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.

[62] 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.

[63] Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have any, any binding effect of their own. The expressions ‘subject to contract’, ‘subject to the preparation of a formal contract’ and others of similar import prima facie create an overriding condition so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract of itself.” 2

[30] The earlier decision of the Federal Court in Australian Postal Corporation v Gorman and Another, 3 provides guidance on the subject of the contractual extinguishment of an unfair dismissal claim;

“The applicant’s case is that there was an accord and satisfaction between it and the first respondent. It is not suggested that the agreement constituted an accord executory (McDermott v Black (1940) 63 CLR 161 at 184 per Dixon J (as his Honour then was)). It would not matter if the accord and satisfaction was conditional as the applicant is prepared to carry out its obligations under the agreement (Seddon N and Ellinghaus M, Cheshire and Fifoot’s Law of Contract (8th Australian ed, LexisNexis Butterworths, 2002) at [4.24]).

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.

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.

There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Ch 3, Pt 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 s 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.” 4

[31] The same matter also noted that the question of whether there was or was not a binding settlement agreement is a question of fact, although no doubt informed by legal principles. 5

[32] The reasoning in Masters v Cameron, 6 referred to in Curtis v Darwin City Council,7 have been applied by the Commission in other similar matters; see, for example, McKinnon v Eventide Homes (Stawell) Inc.,8 Heyden v Maa Ambe Group Pty Ltd,9 and Ayaz v Transdev NSW South Pty Ltd.10

[33] In Zoiti-Licastro v Australian Taxation Office, 11 the Full Bench dealt with the circumstance in which terms not read out in a conciliation may later be incorporated into a “terms of settlement” document, with Commissioner Bissett deciding the following on the subject in McKinnon v Eventide Homes (Stawell) Inc.;

“[51] In Zoiti-Licastro it was argued that there were terms included in the final agreement that had not been specifically dealt with in the conciliation discussion.

[52] The relevant facts in Zoiti-Licastro are set out in paragraph 4 of that decision:

The evidence concerning the settlement discussions is set out in the Senior Deputy President’s decision. It is not necessary to repeat it all. It is clear that following discussions on 3 March 2005 between Mr Dowling on behalf of the appellant and Mr Niall on behalf of the ATO agreement was reached on the following terms:

(i) the ATO would pay the appellant $17,000 ($12,000 on the presentation of invoices for legal costs and $5,000 as an eligible termination payment);

(ii) a statement of service would be provided to the appellant;
(iii) payment would occur within 14 days of signing terms of settlement;
(iv) the appellant would adjourn the proceedings pending receipt of payment.

[53] Whilst finding that the terms included in the written agreement that were not discussed went to mutual releases and confidentiality, the Full Bench found that:

It is clear that the settlement agreement drafted by the ATO’s solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant’s focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005.

[54] The circumstances in this case are not substantially different to those of Zoiti-Licastro. On the basis of the principles in Zoiti-Licastro it can be concluded that the failure to read out, during conciliation, the precise wording of the terms of the agreement reached between the parties does not mean that a concluded agreement was not reached. Concentration on the words of the agreement ‘miss the point.’ On the evidence before me nothing was said in conciliation of this application that suggests the agreement was conditional in any sense.” 12

[34] Upon appeal, the Full Bench found that the Commissioner had properly applied Zoiti-Licastro and the other authorities to which she referred. 13

Consideration

[35] The combination of correspondence between all concerned in March and April 2014 lead me to the following;

• Ms Mullins accurately recorded that a settlement had been achieved and that Mr Ropciuc had waived the prospect of a cooling-off period. I do not accept what Mr Ropciuc implies, that she recorded a settlement when there was none, since to do so would be contrary Ms Mullins’ letter and the later correspondence of Ms McCallum. The proposition that no settlement had been achieved would also have led to a materially different letter from Mr Ropciuc to Ms Lillywhite on 17 March 2014 (referred to below). The consistency of evidence is that Ms Mullins accurately recorded the settlement that had been achieved.



• Ms McCallum’s email to Ms Lillywhite on 7 March 2014 accurately records what she understood the terms of settlement to be. It is not suggested to me, and I do not find, that Ms McCallum acted untruthfully in recording the settlement in the way she did.



• The Terms of Settlement as set out by Ms McCallum and as included in Mr Ropciuc’s material from October 2015 are consistent with her email to Ms Lillywhite on 7 March 2014.



• Mr Ropciuc’s email to Ms Lillywhite on 17 March 2014 could have been an opportunity for him to say categorically that he had not agreed to anything in the conciliation conference. However, he said nothing of the sort. While it can be construed as him saying he wanted to speak with an FWC case manager, there is nothing on its face to say that he had not settled as had been recorded by the conciliator and Ms McCallum. Reasonably, it could be expected that an applicant who had been misrepresented in a conciliator’s “close-out” letter, and then later in correspondence from the respondent, could be expected to be insistent of their contrary position, yet no such reading is allowed by the content of this email.

[36] In this matter, it is relevant to note that the file records both that a settlement was reached in the course of a conciliation conference and that settlement was to be recorded in terms of settlement to be provided to the Applicant by the Respondent’s legal counsel, Ms McCallum. That circumstance potentially leads to a finding that the first of the classes of agreement referred to in Curtis v Darwin City Council, 14 is not applicable to Mr Ropciuc’s situation. There appears to be no evidence that would suggest the parties had, within the confines of the conciliation conference, reached finality about the totality of their agreement and that they intended to be immediately bound to the performance of those terms.

[37] However, a finding can be made that the circumstance falls into the second of the classes referred to in Curtis. The parties reached agreement on the substantial matters and then left the conciliation conference with the intention of drafting and executing a formal document. That is what Ms Mullins’ “close-out” letter says, and that is what Ms McCallum proceeded to do, first by drafting a formal document and then requesting Ms Lillywhite to put it to Mr Ropciuc for signature.

[38] As a result, I find that Mr Ropciuc’s application for unfair dismissal remedy would have no reasonable prospect of success if it were to be listed by me for arbitration; per Australian Postal Corporation v Gorman and Another. 15

[39] Subject to the Australian Red Cross providing me with a statutory declaration that the Terms of Settlement agreed by them with Mr Ropciuc have been and will continue to be complied with by the Respondent, I will issue an Order dismissing Mr Ropciuc’s application for unfair dismissal pursuant to s.587(1)(c) of the Fair Work Act 2009. The Respondent is directed to file and serve such statutory declaration no later than 5 PM on Friday, 8 April 2016.

COMMISSIONER

Appearances:

Mr D Ropciuc on his own behalf

Ms E McCallum for Australian Red Cross

Hearing details:

2016.

Melbourne (by telephone):

16 March.

 1   [2012] FWAFB 8021.

 2   Ibid [61]–[63], with reference to Masters v Cameron [1954] 91 CLR 353, 360-361, per Dixon CJ, McTiernan and Kitto JJ.

 3 [2011] FCA 975.

 4   Ibid [30]–[33].

 5 Ibid [37].

 6 [1954] 91 CLR 353.

 7   [2012] FWAFB 8021.

 8   [2013] FWC 5273 [48]–[50]; confirmed on appeal in [2013] FWCFB 8123 [3].

 9   [2014] FWC 7854 [24]–[26].

 10   [2015] FWC 7098 [33], (decision under appeal).

 11   PR967544.

 12   [2013] FWC 5273 [51]–[54].

 13   [2013] FWCFB 8123 [3]–[4].

 14   [2012] FWAFB 8021 [61].

 15 [2011] FCA 975 [30]–[33].

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