David Nethery v DMD (Tas) Pty Ltd ATF DMD Unit Trust
[2020] FWC 7013
•24 DECEMBER 2020
| [2020] FWC 7013 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Nethery
v
DMD (Tas) Pty Ltd ATF DMD Unit Trust
(U2020/3007)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 24 DECEMBER 2020 |
Application for unfair dismissal remedy - whether the parties had negotiated binding terms of settlement – Masters v Cameron categories - Masters v Cameron applies – binding settlement extinguished claim – application dismissed.
Introduction
[1] On 13 March 2020, the Fair Work Commission (the Commission) received an application from Mr David Nethery (the applicant) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with DMD (Tas) Pty Ltd ATF DMD Unit Trust (the respondent). The applicant was represented by Mr Kristian Bolwell of WorkLawyers. The respondent was represented by Ms Kristina Vermey of Cohorte Workplace Law.
Background
[2] This matter has an involved history. The matter was listed for a mention/directions conference to occur by teleconference on 19 June 2020, and for hearing on 29 and 30 June, and 1 July of 2020. At the request of the applicant settlement discussions occurred during the conference on 19 June. During this private conference the parties advised me that they agreed to terms with which to settle the matter, although the applicant now challenges this in some respect. I then cancelled the hearings listed.
[3] This was not the end of the matter. The parties never signed agreed terms of settlement. The applicant never filed a notice of discontinuance and did not advise me about the matter. When I asked about the status of the matter in November the respondent sought to have the matter dismissed and the applicant sought to have the matter left open while an underpayments claim was pursued elsewhere.
[4] On 19 June 2020 a Deed of Settlement was sent to Mr Bolwell which recorded the settlement agreement that had been reached during the private conference. On 24 June 2020, Mr Bolwell emailed my Chambers, made a number of comments about the alleged agreement, and sought to have the matter remain live within the Commission and to have the matter relisted to a time where the applicant was medically fit to participate.
[5] On 25 June 2020, Ms Vermey contacted my Chambers in response to Mr Bolwell’s email of 24 June 2020 stating that the respondent would be seeking to have the applicant’s unfair dismissal claim dismissed pursuant to section 587 of the Fair Work Act 2009, on the basis of settlement being reached in the Commission on 19 June 2020 during the private conference convened at the conclusion of the Mention/Directions conference.
[6] On 17 November 2020 my chambers sent an email to Mr Bolwell advising that the file would be closed or the matter dismissed unless advice was received:
“Dear Mr Bolwell,
This matter is still open.
Further to your email of 24 June 2020, we will close the file or dismiss the matter without further contact with the parties unless a party requests to have it relisted or kept open with reasons given by close of business 20 November 2020. Reasons should include why there has been no contact made with the Commission since the previous Mention, provision of medical certificates if the reason relates to illness, and submissions as to reasons for seeking to abandon agreed positions.”
[7] On 20 November 2020, Mr Bolwell responded and requested that the matter remain open on the basis that:
• the applicant has commenced proceedings in the Federal Circuit Court against the respondent for alleged underpayments and contraventions of the Act;
• it was not financially viable for the applicant to have two matters on foot and it would be a waste of resources of the Commonwealth and cause unnecessary expense to the respondent to have proceedings in both the Federal Circuit Court and the Commission at the same time; and
• if the matters can be resolved at the Federal Circuit Court, then it would be anticipated that the matter with the Commission would be discontinued.
[8] Mr Bolwell further requested that all correspondence sent between the Commission and the respondent be provided. Mr Bolwell said that he held concerns that the Commission and the respondent had communicated privately as the applicant and the respondent had conducted further unsuccessful without prejudice settlement negotiations in the week ending Friday, 13 November 2020 and then received correspondence from the Commission two business days later.
[9] On 23 November 2020, my Chambers responded to the email of Mr Bolwell inviting Ms Vermey to respond to the proposal put forward by Mr Bolwell as well as providing Mr Bolwell a further opportunity to provide a response to Ms Vermey’s submission if he wished to do so. I said that a decision would be made on the basis of the written submissions made by the parties.
[10] I said that I was not aware nor in receipt of any correspondence exchanged between the Commission and the Respondent that Mr Bolwell made reference to. I requested Ms Vermey to provide the Commission with any correspondence exchanged between the respondent and the Commission since the last exchange on 25 June 2020. I also explained that my Chambers was in the process of finalising files that were adjourned and where no formal result had been documented or where there had been no recorded activity on the file.
[11] Both the applicant and respondent provided further submissions, which are summarised. 1 The respondent stated that no communication with my Chambers had been sent by her since 22 June 2020.
[12] I have had regard to all submissions and evidence.
[13] Following receipt of submissions and evidence I asked the parties if they wished to have a hearing in relation to the matter, as opposed to it being determined on the papers. The respondent indicated that it did not wish a hearing and the matter could be determined on the papers without a hearing. 2 The applicant did not respond in any way.
The Act
[14] Section 399A of the Act provides:
“Section 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.
[15] Section 587 of the Act provides as follows:
“Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC's power to make decisions.”
[16] The respondent asks that I dismiss the application dismissed pursuant to these provisions.
Consideration
The Mention/Directions Conference of 19 June 2020
[17] The respondent provided a detailed outline of the events that occurred which led to the settlement discussions and agreement. 3 The applicant put a number of general submissions but did not respond in detail to the account given by the respondent. This is an unfortunate approach. I am left with a series of somewhat general complaints by the applicant without any attempt to provide me with a detailed and persuasive factual basis which supports these complaints. Some of these events were recorded and should have simply been acknowledged and agreed to by the applicant acting in good faith. Even when the applicant is specific about events that occurred, the claims made by the applicant appear to vary and contradict each other. The applicant complains in his submissions that no ‘genuine’ agreement was reached.4 In his witness statement he claims that he believed that he had agreed to advise the respondent by the close of business that day if he agreed.5 These statements do not with respect seem to be compatible, but inconsistent, which makes it difficult to accept either version. The correspondence sent by the applicant to the respondent6 and discussed below does not initially contain any statement by the applicant that no binding agreement was reached or refute the respondent’s consistent complaint that a binding agreement was reached, or claim that the applicant had agreed only to consider the settlement. The applicant’s correspondence therefore does not seem to support the claims made by the applicant in his witness statement.
[18] I have in any event taken account of all the submissions put in at least three different submissions by the applicant, which includes witness statements, and summarised in Appendix 1. The applicant claims that the global settlement was not a ‘genuine agreement’, 7 that the deed was complex and there were some difficulties with the deed of settlement,8 that the manner in which the agreement was achieved was ‘fundamentally unfair’,9 that I did not explain proceedings to the applicant,10 the applicant had supplied a medical certificate indicating that he was unfit for legal proceedings until after 22 July 2020, the applicant was advised that he had suffered an anxiety attack during the Mention/Directions Conference on 19 June 2020, and that the applicant was still open to settling the matter on a global basis but is of the view that the settlement amount should have included an amount for non-global settlement and that due process may not have been provided to him in this regard.11 The applicant further submitted that he felt “railroaded” into accepting a global settlement, the Mention/Directions Conference became a Determinative Conference where parties were required to provide a summary of their evidence and respond to my enquiries about case law and submissions made, the applicant was not permitted to put offers forward as to his liking as I had determined the maximum amount that could be put forward, I altered how the settlement figure was to be calculated, that being from weeks’ pay to multiples of dollar amounts reduced the applicant’s settlement amount, and that the respondent’s refusal to use a standard Deed of Settlement acted as a catalyst for the applicant to undertake further steps to recalculate what he felt he was owed in an alleged underpayment from the respondent12. Mr Bolwell advised in this letter that the applicant did not agree to settle on a global basis and sought to have the matter remain live within the Commission and to have the matter relisted to a time where the applicant was medically fit to participate. In relation to the manner in which the agreement was achieved the applicant said that the matter was listed for mention/directions, and yet the applicant was asked to respond in detail about evidentiary issues and legal submissions.13 The applicant complains that I prevented discussion of the full six months’ pay as a possible settlement.14 There are other complaints.
The context of these claims
[19] The applicant chose to bring an unfair dismissal claim rather than a claim for underpayment of wages or something else. The focus of submissions and evidence was about unfair dismissal tests such as a valid reason for termination. Alleged breach of award was referred to 15 but was not fully quantified and defined. In any event I am unable to enforce awards. The settlement discussions which occurred concerned the unfair dismissal application before me, at least initially, and therefore also had regard to the six months cap on compensation which may be awarded under the Act. This should not have been a surprise to the applicant. It may be that the applicant should have brought an underpayment of wages application. That is however the choice that the applicant made, and is responsible for.
[20] The applicant claimed on 4 September 2020 that the “settlement figure is simply too low”. The fact that a party has not done the best that he could have or considers that he could have in negotiations over a settlement, after thinking the matter over later, does not mean that the applicant can simply ignore a binding agreement and set it aside. Natural justice does not require for example that a party put the best submissions possible. It may be that the only real issue in dispute is the amount of the settlement.
The applicant’s health
[21] I accept that the health of the applicant was a relevant consideration to be taken into account and I sought to do so and was amenable to any suggestion that the applicant’s representative might make. It was open to the applicant to raise any health issues during the conference or ask that the matter be adjourned or some other course taken and he did not do so. Instead the conference proceeded. The applicant was represented. Nor has a medical certificate been provided about his capacity on the day of the mention and any lack of understanding of the contract. The applicant made claims that he suffered from ‘severe anxiety during the months in which the unfair dismissal proceedings commenced which is why I sought extensions to time to lodge documents’, he wanted to talk about his ‘mental health’, he found proceedings difficult to follow, ‘I was becoming more confused as things progressed and I mentioned to Emily that I needed a break as I was feeling ill. I decided to stick it out so as not to inconvenience others’, ‘I felt extremely anxious with a raised heart beat, clammy hands and dry mouth. I tried to keep it in check as best I could, but despite being on the medication, I was not able to’, and it was difficult to keep in touch with his lawyer to communicate this. He said in relation to the agreement:
“At the point I thought we had reached a settlement for the unfair dismissal proceedings of $9000, the Respondent’s introduced the requirement that it be a global settlement. By this point I did not really understand what was happening as I was trying to control my anxiety (feeling physically sweaty, nauseous, pounding heart and mentally anxious). Instead of communicating this to the Commission, I agreed to consider the Deed by the close of business that day to buy myself a bit of thinking time.” 16
[22] Similar statements were made by Ms Harris, which I have taken into account and will not repeat. He made similar statements in the initial evidence to the Commission. 17
[23] One summary of legal capacity was provided in The Laws of Australia:
“In order to avoid the contract on the ground of incapacity, the onus is on the party seeking to have the contract avoided to first establish that: (a) the contracting party was unable, due to mental impairment, to understand the contract at the time of formation; and (b) that the other party either knew or ought to have known of the impairment. This is said to be very similar to the law relating to unconscionable conduct—which is given statutory recognition in the Australian Consumer Law (ACL).” 18
[24] In Lv Human Rights and Equal Opportunity Commission, 19 the Full Court of the Federal Court (Black, Moore and Finkelstein JJ) said:
“There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.”
[25] These requirements for demonstrating a lack of legal capacity are not met. The applicant at best claims some difficulty, not that he was unable to understand the contract. In any event, the applicant does not claim in his submissions that he lacked legal capacity to reach an agreement or attempt to demonstrate this in submissions having regard to the relevant legal tests.
[26] In those circumstances the respondent is entitled to rely on the agreement reached with the applicant. It has to be remembered that the respondent’s interests are important as well. These are proceedings with two parties, and it is by no means the case that the interests of one party must predominate. It seems likely that both the applicant and the respondent are personally adversely affected by this matter. The respondent’s witness statement for example expresses concern about the viability of his hospitality business:
“By the time I came back from holiday in mid-October 2019, I was worried about our wages budget for the year ahead and would need to be very tight with my rostering over the seven-day trading period. In my experience wages are the first thing to kill a hospitality business and I was becoming very worried about the viability of the Salty Dog.” 20
[27] I have reservations about accepting all of the account given by Mr Nethery in relation to this matter, because I am not satisfied that the applicant’s account of events is true and accurate given the difficulties already mentioned. However I note that his partner appears to verify it, which is a factor in his favour. I have already noted the inconsistency in his version of events. Further, as we will see the applicant does not address the attempt by the respondent to set out the steps that led to the settlement. The applicant simply ignores these submissions. If the applicant through his representative was concerned to provide the Commission with a true account of events he would have accepted claimed events that occurred, and disputed those that he believed did not occur. The applicant through his representative did not do this. Even if I accept Mr Nethery’s account of the alleged effect of his health on proceedings, the applicant does not submit that the alleged ill health meant that he lacked legal capacity to enter into an agreement. If he misunderstood the contract it was his responsibility and the responsibility of his legal representative to ensure that he understood. Mr Nethery was represented and his representative was in a position to raise any issues relating to health, and perhaps in the best position to deal with those issues and assist the Commission in dealing with them. The respondent was entitled to rely on Mr Nethery’s agreement to the settlement.
Commencement of settlement discussions
[28] The applicant complains about the settlement discussions and it is therefore necessary to ascertain how those settlement discussions began, occurred, and how they concluded. The first issue to be determined is how the settlement discussions came about. They came about because of the request of the applicant, which was agreed to by the respondent. This is apparent from the respondent’s submissions which are largely or wholly not denied by the applicant.
[29] At paragraph 16 of the respondent’s submissions the respondent submitted:
“At the Mention on Friday 19 June 2020, Deputy President Hamilton sought clarification of the parties’ respective positions and the issues in dispute.” 21
[30] The applicant did not deny that this occurred. This was not disputed by the applicant and I find that this occurred.
[31] The respondent submitted at paragraph 17 that:
“Towards the end of that process, Solicitor for the Applicant, Mr Kristian Bolwell, informed Deputy President Hamilton that his client (the Applicant) would be open to engaging in settlement discussions.” 22
[32] The applicant did not deny that this occurred. I find that it did occur.
[33] The respondent submitted at paragraph 18 that:
“Deputy President Hamilton sought the views of the Respondent in relation to Mr Bolwell’s proposal. I confirmed on behalf of the Respondent that the Respondent was prepared to engage in settlement discussions. The matter was then adjourned into conference (FWC Conference).” 23
[34] The applicant did not deny that this occurred. I find that it did occur.
The settlement discussions
[35] The second issue is what settlement discussions occurred, which the applicant complains about although largely accepting the account given by the respondent. The respondent submitted at paragraph 19 that:
“Deputy President Hamilton asked the parties to be “sensible and flexible” when exchanging settlement offers.”
[36] The applicant did not deny that this occurred. I find that it did occur.
[37] The respondent submitted at paragraph 20 that:
“The offers initially exchanged were expressed by the Applicant in terms of weeks’ pay. This necessitated some discussion between the parties about the Applicant’s weekly rate of pay in order to translate each offer into a dollar figure. In this context, Deputy President Hamilton suggested that the parties formulate and put forward the amount of their offer, rather than expressing the offer in terms of weeks.”
[38] The applicant did not deny that this occurred, although his version is slightly different. I find that it did occur. I had no capacity to force the parties to discuss a settlement in any form that I they wished, and did not attempt to do so.
[39] The respondent submitted at paragraph 21 that:
“Following the exchange of initial offers, I sought clarification and confirmation that any settlement reached would be in full and final resolution of all matters between the parties arising from the Applicant’s employment with the Respondent.”
[40] The applicant did not deny that this occurred. I find that it did occur.
[41] The respondent submitted at paragraph 22 that:
“Mr Bolwell initially indicated that, although the Applicant was prepared to settle the Unfair Dismissal Claim, the Applicant was intending to make a further claim against the Respondent in relation to alleged underpayments. Those allegations were and are denied by the Respondent.”
[42] The applicant did not deny that this occurred. I find that it did occur.
[43] At paragraph 23 the respondent submitted:
“Following further discussion, and after obtaining instructions from his client, Mr Bolwell confirmed that the Applicant was prepared to engage in settlement discussions on a “global” basis, meaning that any settlement would be in full and final settlement of all matters between the parties arising from the Applicant’s employment with the Respondent.”
[44] The applicant did not deny that this occurred. I find that it did occur.
How the agreement was reached
[45] Thirdly, there is the issue of how the agreement was reached. At paragraph 24 of the respondent submitted:
“Settlement discussions resumed on that basis. After a further exchange of positions, the parties reached agreement to settle the matter on a global basis (as described above).”
[46] The applicant did not deny that this occurred. I find that it did occur.
[47] At paragraph 25 of the respondent submitted:
“The terms of the settlement were clearly and unequivocally agreed to by the parties.”
[48] The respondent submitted at paragraph 26 of the respondent’s submissions:
“The Relief Associate to Deputy President Hamilton sent the parties a draft Deed of Release, which was intended to record the agreement reached between the parties. The Deed of Release contained some drafting errors and did not fully record the global nature of the settlement. Deputy President Hamilton acknowledged that the Deed of Release provided was not in the form usually preferred by His Honour and some initial attempts were made to rectify the drafting issues identified.”
[49] The applicant did not deny that this occurred. I find that it did occur. While the deed was an older version this did not result in or contribute to the current proceedings.
[50] The respondent submitted at paragraph 27 of the respondent’s submissions:
“I was concerned to ensure that the written terms properly recorded the agreement that had been reached between the parties, so suggested that Mr Bolwell and I resolve the drafting between ourselves and then send the executed deed of release to the FWC for their records. The parties agreed to this course and gave a commitment to “engage sensibly” in any discussions around the wording of the deed.”
[51] The applicant did not deny that this occurred. I find that it did occur.
[52] At paragraph 28 the respondent submitted:
“Deputy President Hamilton then re-stated the agreed terms, following which:
a. Both parties again confirmed their agreement to those terms; and
b. Solicitors for both the Applicant and Respondent gave an undertaking to the FWC that the executed deed of release would be provided for the FWC’s records.”
[53] Mr Nethery claims that he only agreed to consider the Deed by the close of business that day:
“At the point I thought we had reached a settlement for the unfair dismissal proceedings of $9000, the Respondent’s introduced the requirement that it be a global settlement. By this point I did not really understand what was happening as I was trying to control my anxiety (feeling physically sweaty, nauseous, pounding heart and mentally anxious). Instead of communicating this to the Commission, I agreed to consider the Deed by the close of business that day to buy myself a bit of thinking time.” 24
[54] I note that the applicant also states that he “did not really understand what was happening”. This is not a firm assertion that he did not agree to the settlement. It is a statement that he was somewhat confused. Even on his own version of events it is possible that he agreed to the settlement, which is the respondent’s claim. I have already dealt with the alleged medical issues.
[55] The applicant now claims that no ‘genuine agreement’ was reached. 25 This is inconsistent with the version of events given in the applicant’s witness statement and quoted above. It appears to be a claim that an agreement was reached. This interpretation is consistent with the correspondence between the applicant and respondent. The initial correspondence sent by the applicant to the respondent does not contain a firm statement that no binding agreement was reached, even in the face of immediate and consistent statements from the respondent that a binding agreement was reached.
[56] The respondent claimed on 23 June 2020 that an agreement was reached whose terms were ‘clear’. 26 In a further email on 24 June 2020 the respondent states that no reply had been received and that a binding agreement settling all issues had been reached.27 In his email of 24 June 202028 the applicant does not dispute that a binding agreement was reached, or mention the issue, although he complains about a range of issues. On 25 June 2020 the respondent states that an agreement was reached.29 The applicant replies on 26 June 2020 and does not claim that there is no agreement or refute the applicant’s claim.30 On 6 July the respondent complains that the applicant was breaching the agreement reached.31 On 1 September the respondent states that a ‘binding’ agreement was reached.32 It may be that the applicant is correct in stating33:
“34. I did not receive a response. Accordingly, on 24 June 2020, I send a formal letter to Mr Bolwell, outlining the Respondent’s position and seeking confirmation that the Applicant would execute the Deed of Settlement and Release and file a Form F50 Notice of Discontinuance, consistent with the agreement reached and undertaking given to the Fair Work Commission.
35. Later that day, Mr Bolwell sent an email to the Associate to Deputy President Hamilton, stating (in summary) that the Applicant:
a. was unfit for legal proceedings until after 22 July 2020;
b. does not agree to settle on a global basis and would like to have the matter remain live in the FWC until he is fit to have the matter re-listed.
36. In that email, Mr Bolwell acknowledged that the parties had agreed to resolve all matters between them, specifically referring to the “global nature of the settlement”.”
[57] If no binding agreement was reached the applicant through his representative would have immediately and consistently said this as a matter of truth, as he is required to do. The applicant did not make this claim or make it in a clear fashion but made other complaints.
[58] The respondent submitted at paragraph 29:
“Both parties, including the Applicant personally, thanked Deputy President Hamilton for assisting to resolve the matter.”
[59] The applicant did not deny that this occurred. I find that it did occur. If the applicant was not satisfied with the settlement or the mention his representative or he himself could have said so. Neither did.
[60] The respondent submitted at paragraph 30:
“The FWC Conference concluded at or around 1 pm. Later that afternoon, I sent a Deed of Settlement and Release to Mr Bolwell, recording the settlement agreement that had been reached between the parties in the FWC Conference.”
[61] The applicant did not deny that this occurred. I find that it did occur.
[62] The respondent submitted at paragraph 31:
“On 19 June 2020 (following the settlement reached in the FWC Conference), the FWC issued a Notice confirming that the Arbitration Conference / Hearing listed before Deputy President Hamilton on 30 June and 1 July 2020 had been cancelled.”
[63] The applicant did not deny that this occurred. I find that it did occur.
[64] Finally, there is the question of the content of the agreement. As discussed above, the agreement reached at that conference was that there be a ‘global settlement’ of all matters between the parties, including alleged underpayment of wages, in return for a financial payment by the employer and the usual terms of settlement, which include full mutual release, confidentiality, and non-disparagement. The terms of the agreement are accurately set out in the deed prepared by the respondent, subject to discussion about exact wording, rather than any other issues such as issues of substance. 34
Consideration of settlement discussions
[65] The object of Part 3-2 – Unfair Dismissal, at Division 1 of the Act is provided for at section 381 and provides:
“Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.”
[66] The conference was held pursuant to such objectives, and one objection taken by the applicant is that the applicant and respondent had to answer questions about the evidentiary basis of claims they had made in their submissions, such as the applicant’s arguable oral resignation which the employer treated as a resignation, 35 and other employees claimed he told them he had resigned. The applicant claimed it was not a resignation.36 This was a preliminary discussion of the witness statements and submissions that they had filed,37 to narrow the scope of scheduled arbitration hearings or assist possible settlement discussions. Its preliminary nature was indicated by the listing as a mention/directions conference. The applicant could have refused to answer questions because they were unprepared to answer questions about their submissions and evidence, requested or demanded a hearing, that the discussions cease, that the matter be adjourned, or something else. I refused no such request because none were made. In any event it is odd that a party complains that they were questioned about the evidentiary basis of their submissions. The applicant made various claims of an accusatory nature about the respondent and provided witness statements and submissions in support of those claims. These were serious accusations of employer misconduct, including breach of the law. The Commission and respondent were entitled to ask about the basis of those and other claims. These proceedings are forensic proceedings in which evidence is put forward to support contested claims relevant to the statutory tests. The applicant further complains that he was ‘railroaded’ or forced into an agreement. This complaint has no basis. The Commission has no power to force a party into an agreement. The applicant also alleges that I was in some manner hostile to the applicant’s submissions or prejudged them or wished to prejudge them.38 This assertion is made without any factual basis and I reject this characterisation of the mention. The applicant does not claim bias or attempt to substantiate such a claim, and I deal no further with that issue. The applicant was not prevented from putting any submission it wished to a hearing. I did not insist or require that the scheduled hearing be cancelled. It was cancelled after the parties advised me that they had reached agreement.
[67] I further note that the applicant specifically requested that settlement discussions occur after the completion of a process of clarifying the submissions and evidence of the parties. 39 These settlement discussions then occurred. This was the choice of the applicant. The applicant could instead have asked for a hearing, refused to settle the matter, demanded more money, complained, or something else. It was open to the applicant to insist on six months’ pay or more as a settlement. The applicant did not do so at any time. The applicant could have refused the respondent settlement offer. The applicant did not do so. The applicant agreed to the settlement offer and its basis.
The Settlement Agreement
[68] In Masters v Cameron 40 the High Court discussed the circumstances in which a binding settlement agreement may be found to exist:
“9. 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 cases. It may be one in which 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. Or, secondly, 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. Or, thirdly, 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. (at p360)
10. 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. Of these two cases the first is the more common. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v. Miller (1878) 3 App Cas 1124 when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. His Lordship proceeded: " . . . as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed" (1878) 3 App Cas, at p 1151 : see also Sinclair,Scott & Co. Ltd. v. Naughton [1929] HCA 34; (1929) 43 CLR 310, at p 317 . A case of the second class came before this Court in Niesmann v. Collingridge [1921] HCA 19; (1921) 29 CLR 177 where all the essential terms of a contract had been agreed upon, and the only reference to the execution of a further document was in the term as to price, which stipulated that payment should be made "on the signing of the contract". Rich and Starke JJ. observed (1921) 29 CLR, at pp 184, 185 that this did not make the signing of a contract a condition of agreement, but made it a condition of the obligation to pay, and carried a necessary implication that each party would sign a contract in accordance with the terms of agreement. Their Honours, agreeing with Knox C.J., held that there was no difficulty in decreeing specific performance of the agreement, "and so compelling the performance of a stipulation of the agreement necessary to its carrying out and due completion" (1921) 29 CLR, at p 185 : see also O'Brien v. Dawson [1942] HCA 8; (1942) 66 CLR 18, at p 31. (at p361)
11. 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 binding effect of their own: Governor & c. of the Poor of Kingston-upon-Hull v. Petch [1854] EngR 995; (1854) 10 Exch 610 (156 ER 583). The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document, as in Summergreene v. Parker [1950] HCA 13; (1950) 80 CLR 304 or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed. These possibilities were both referred to in Rossiter v. Miller (1878) 3 App Cas 1124. Lord O'Hagan said: "Undoubtedly, if any prospective contract, involving the possibility of new terms, or the modification of those already discussed, remains to be adopted, matters must be taken to be still in a train of negotiation, and a dissatisfied party may refuse to proceed. But when an agreement embracing all the particulars essential for finality and completeness, even though it may be desired to reduce it to shape by a solicitor, is such that those particulars must remain unchanged, it is not, in my mind, less coercive because of the technical formality which remains to be made" (1878) 3 App Cas, at p 1149 . And Lord Blackburn said: "parties often do enter into a negotiation meaning that, when they have (or think they have) come to one mind, the result shall be put into formal shape, and then (if on seeing the result in that shape they find they are agreed) signed and made binding; but that each party is to reserve to himself the right to retire from the contract, if, on looking at the formal contract, he finds that though it may represent what he said, it does not represent what he meant to say. Whenever, on the true construction of the evidence, this appears to be the intention, I think that the parties ought not to be held bound till they have executed the formal agreement" (1878) 3 App Cas, at p 1152 . So, as Parker J. said in Von Hatzfeldt-Wildenburg v. Alexander (1912) 1 Ch 284, at p 289 in such a case there is no enforceable contract, either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. (at p362)”
[69] The applicant did not provide submissions relating to or specifically address the types of categories of agreements discussed in Masters v Cameron 41 and claimed by the respondent. The applicant submitted the following with respect to the Deed of Settlement and Release provided by the respondent to the applicant:
“Complexity of deed intervened. The Fair Work Commission provided a deed of 1 page to the parties at 12:24 PM, The respondent’s representative then insisted on providing a deed at 16:32 ,,over four [sic] later on the same day. The Respondent’s deed is significantly more expensive [sic] that [sic] the Fair Work Commission deed and of note, provides at clause 7(c):
‘Mr Nethery has had full and proper opportunity to obtain legal advice concerning the terms and effect of this Deed.’
This provision was not in the Fair Work Commission Deed. To give effect to this new clause, Mr Nethery did seek advice and the deed remains unsigned.” 42
[70] The applicant was represented and had available to him legal advice. There was no issue with the deed that should not have been dealt with in earlier legal advice provided by the applicant’s representative. As discussed above, the agreement reached at that conference was that there be a ‘global settlement’ of all matters between the parties, including alleged underpayment of wages, in return for a financial payment by the employer and the usual terms of settlement, which include full mutual release, confidentiality, and non-disparagement. The terms of the agreement are accurately set out in the deed prepared by the respondent, subject to discussion about exact wording, rather than any issues of substance. 43
[71] The respondent submitted that the agreement reached was the type described in the first category of Masters v Cameron 44, that being “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.”45 The respondent submits that the following matters support to a finding that a category one contract was formed:
“• At the Mention/Directions Conference, the parties agreed to engage in settlement discussions;
• The parties agreed to a global settlement of all matters, meaning that it was contemplated to be in full and final settlement of all matters pertaining to the Applicant’s employment and cessation of employment;”
[72] The respondent also submitted that:
• The terms contain within the settlement agreement were expressed clearly, precisely and were fully stated;
• Both parties agreed to be bound by the terms;
• Both parties agreed to execute terms of settlement recording the agreement that had been reached and gave an undertaking to the FWC to do so and to provide such terms to the FWC for their records;
• On the understanding that settlement had been reached, the Commission cancelled the Arbitration Conference / Hearing of the Application listed for 30 June and 1 July 2020;
• The Deed of Settlement and Release forwarded by the Respondent’s Solicitor to the Applicant’s Solicitor on 19 June 2020 restated the agreed terms in a form that was fuller and more precise, but not different in effect to the standard Commission Deed of Settlement and Release provided by the Relief Associate during the Mention/Directions Conference. The Deed of Settlement and Release was otherwise in standard terms.” 46
[73] I will not repeat my detailed findings above. However, as discussed above, the agreement reached at that conference was that there be a ‘global settlement’ of all matters between the parties, including alleged underpayment of wages, in return for a financial payment by the employer and the usual terms of settlement in a deed, which include full mutual release, confidentiality, and non-disparagement. The terms of the agreement are accurately set out in the deed prepared by the respondent, subject to discussion about exact wording, rather than any issues which needed further agreement other than wording. 47 If the agreement was not clearly, precisely and full stated, the applicant has not pointed out what was omitted or was not included or was not precise and full. The only issue raised relates to legal advice, and this is not an issue of substance given that the applicant was represented.
[74] In the alternative, the Respondent submits that the agreement reached falls to the second category identified in Masters v Cameron 48 “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”.49 The respondent submits that the following matters support a finding that a category two contract was formed:
“• Both parties agreed to execute terms of settlement recording the agreement that had been reached and gave an undertaking to the FWC to do so and to provide such terms to the FWC for their records.
• The timing for payment of the agreed Settlement Sum is dictated by the date on which the terms of settlement are executed. That is, the parties agreed that the Settlement Sum would be paid in instalments, with the first instalment being paid within 7 days of the date of execution of the deed of settlement and release.” 50
[75] In the alternative, this is also consistent with the findings I have made above.
[76] There is no basis in the facts for a finding that the agreement depended on later agreements, or something similar.
[77] For these reasons I find that a binding settlement agreement was reached.
Section 399A
[78] Section 399A of the Act provides:
“Section 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.
[79] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) provides the following with respect to section 399A:
“[161] Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:
• failed to attend an FWC conference or hearing relating to the application
• failed to comply with an FWC direction or order relating to the application, or
• failed to discontinue the application after a settlement agreement has been concluded.
[162] The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.
[163] In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:
• an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
• an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.” 51
[80] In Robert Badcock v N & HM Cooper Motor Search (SA) & Car Clearnce Centre (SA) T/A Motor Search, 52 Hampton C made the following comment on the purpose section 399A serves:
“[18] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application.”
[81] I have already found that a binding settlement agreement was reached. Notwithstanding this agreement the applicant continues to pursue his application, or refuses to discontinue it as agreed, and wishes to have the opportunity to pursue the claim. The applicant has failed to discontinue a settled claim as agreed. I therefore will issue an order dismissing the application.
Section 587
[82] In Australia Postal Corporation v Gorman, 53 the Federal Court decided that seeking to continue a claim where a binding settlement agreement exists may be capable of being found to be frivolous or vexatious or without reasonable prospects of success:
“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.”
[83] However it is not necessary for the Commission to make a finding that an application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 is not an exhaustive statement of the powers the Commission is conferred with:
“[59] 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.” 54
[84] Again I have found that a binding settlement agreement was reached for the reasons set out above. Notwithstanding this agreement the applicant continues to pursue his application, or refuses to discontinue it as agreed, and wishes to have the opportunity to pursue the claim. All of this is inconsistent with the agreed settlement. I therefore will issue an order dismissing the application. I find that the continuation of the application in this matter by the application is frivolous and vexatious, and has no reasonable prospects of success, given my findings above. I will issue an order dismissing the matter.
Order
[85] An order dismissing the application is contained in PR725787.
Costs
[86] The respondent foreshadowed an application for costs. No application has been made and I will deal with this should an application be made.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR725786>
Appendix 1 – Summary of Submissions
Submissions of the Applicant
1.1. The Commission does not have power to dismiss the application pursuant to section 399A as there are no facts present which would meet the statutory tests. There was no genuine agreement made, there would be an injustice to the applicant if the matter were to be closed as there are current Federal Circuit Court (FCCA) proceedings on foot concerning alleged underpayments from the respondent, and the applicant was experiencing health problems which diminished his capacity to enter into settlement discussions. 55
1.2. The manner in which the agreement was reached resulted in a “fundamental unfairness” 56 as the notice of listing characterised the listing as a mention/directions conference. However, the Deputy President required the applicant to summarise evidence and legal submissions. It is the belief of the applicant that the Deputy President took this course of action to orchestrate a situation in order to pre-judge the evidence prior to arbitration. The applicant proposed that discussions toward settlement occur due to the Deputy President indicating that he did not find certain arguments persuasive. When settlement discussions occurred, the Deputy President took a heavy-handed approach and did not allow the applicant to start with the maximum statutory position of 26 weeks. When a global settlement was raised by the respondent, the Deputy President did not restate offers of settlement exchanged.
1.3. The Deed of Settlement proposed by the Deputy President was one page in length and was provided to the parties at 12:24 pm, however the respondent insisted on providing a Deed of Settlement at 4:32 pm. The Deed proposed by the respondent was significantly more extensive than the version proposed by the Deputy President. Further, the Deed of Settlement proposed by the respondent states:
“Mr Nethery has had a full and propose opportunity to obtain independent legal advice concerning the terms and effect of this Deed”
1.4. The above provision was not contained in the Deed of Settlement issued by the Deputy President and in order to give effect to the above, the applicant did seek advice. 57
1.5. The case turned to whether it was reasonable for the applicant to have their employment terminated in circumstances where the applicant had suffered mental health issues. The Deputy President was aware of this and did affect the applicant’s capacity to decide and instruct his legal representative. The Deputy President in such circumstances should have adopted a more cautious approach. 58
1.6. Should the application be dismissed, the applicant’s underpayment claim in the FCCA would be hampered as the applicant was known to be dealing with a serious illness at the time and the procedures utilised by the Deputy President were unfair and the respondent’s insistence on a Deed of Settlement that went beyond the proposed Deed of Settlement issued by the Deputy President. 59
Submissions of the Respondent
Ground 1 – Binding Settlement Reached
2.1. An agreement was made between the parties of the kind described in the first category identified in Masters v Cameron, 60 that being “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.”. This is supported where all parties at the Mention/Directions Conference agreed to engage in settlement discussions, reached agreement to settle on a global basis, the terms were clearly stated, both parties confirmed to be bound by those terms, both parties agreed to execute a Deed of Settlement recording the agreement, the Commission cancelled the Conference / Hearing accordingly, and the Deed of Settlement forwarded by the respondent to the applicant was restated in a form that was more fuller and precise.61
2.2. Alternatively, the agreement reached between the parties otherwise falls within the second category identified in Masters v Cameron, 62 that being “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.”. This is evident where the parties agreed to execute terms of settlement and gave an undertaking to the Commission that a copy would be provided for its records, and the timing of payment of the Settlement Sum was to be made in instalments with the first payment being made within 7 days of the parties signing the deed.63
2.3 The applicant’s position that the Deed was not signed, there was (at most) in-principle agreement reached, and after consideration of the alleged underpayment contraventions the applicant contends that the settlement amount was too low is immaterial as: 64
• a binding settlement agreement can still exist even if the deed recording that agreement is not signed;
• there is no basis to suggest in-principle agreement was reached;
• the Commission cancelled the conference / hearing which is consistent with final agreement having been reached;
• the email sent from the applicant’s representative to the ‘global nature of the settlement’ amounts to a concession that the matter had settled;
• the applicant’s representative’s use of the word ‘on reflection’ demonstrates the applicant has simply changed his mind and seeks to renege on the agreement; and
• the applicant’s assertion that the agreement reached was in-principle only was made on 4 September 2020, eleven weeks after the listing was cancelled. The applicant appears to be recharacterizing events as they occurred on 19 June 2020.
Ground 2 – Failure to discontinue the application
2.4. Section 399A provides that the Commission, upon application by an employer, dismiss an application for an order if the Commission is satisfied that the applicant has unreasonably failed to discontinue the application after a settlement agreement has been concluded. The Explanatory Memorandum to the amending Act indicates that section 399A is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. 65
2.5. The respondent reserves the right to make a formal application if required by the Commission to have the application dismissed pursuant to section 399A(1)(c) as: 66
• there was a concluded settlement agreement between the parties;
• that agreement was reflected in the Deed of Settlement and Release sent to the Applicant’s Solicitor on 19 June 2020;
• the Applicant has not discontinued the Application, despite agreeing to do so (this being one of the terms of the settlement agreement reached between the parties); and
• undertaking to the FWC that a form F50 Notice of Discontinuance would be filed.
2.6. Despite requests from the respondent to the applicant to file a Form F50 Notice of Discontinuance they have failed to do so and have acted unreasonably in refusing to discontinue the Application after a settlement agreement had been concluded.
2.7. Further, the applicant is attempting to pursue the application in an improper or unreasonable manner, evidence by the applicant’s stated reasons for seeking to keep the matter open - to provide the Applicant with an opportunity to try to negotiate a higher settlement sum in the FCCA, before deciding whether to discontinue his unfair dismissal Application 67
Ground 3 – Want of Prosecution
2.8. Section 587 of the Act provides that, without limiting when the Commission may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with the Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. The application should be dismissed for want of prosecution. 68
2.9. The medical certificate produced by the applicant on 24 June 2020 stated that the applicant would be unfit until 22 July. The respondent has made numerous requests to advance the matter since that time on 1 September 2020, 11 September 2020, 13 October 2020, and 9 November 2020. The applicant has: 69
• taken no action in relation to his Application since 24 June 2020;
• made no contact with the Commission at all since 24 June 2020;
• provided no further update in relation to the Applicant’s fitness for legal proceedings after the expiry of his medical certificate on 22 July 2020;
• only communicated with the Commission after being prompted by the Commission to do so on 17 November 2020;
• provided no explanation to the Commission for his failure to make contact with the Commission since 24 June 2020;
• the fact the applicant has filed a claim with the FCCA does not explain why no steps have been taken in relation to his Application, does not explain why the Applicant has otherwise had no contact with the Commission in relation to the Application since 24 June 2020, and demonstrates that the Applicant has capacity to engage in legal proceedings; and
• the fact the applicant’s proposal to the Commission to keep the matter open demonstrates an unwillingness to participate in proceedings commenced at his initiative, and would cause further prejudice to the Respondent.
Ground 4 – Prejudice to the respondent
2.10. The respondent has already been prejudiced by the delay occasioned by the Applicant’s failure to progress his Application and will be further prejudiced should the Applicant’s proposal to keep the matter open until the FCCA Claim has been resolved be accepted. In the context of the objects of Part 3-2 of the Act (Unfair Dismissal), which provide that the unfair dismissal provisions of the Act are intended to establish procedures for dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees, in the present matter the applicant’s inaction, more than nine months have passed since the applicant’s employment ended. As the parties have not been advised as to the programming of the FCCA claim, there is no indication when the applicant will be ready to proceed and will likely exceed 12 months since the applicant’s employment ended. 70
2.11. There will be further prejudice given that there will be considerable reliance on the evidence of witnesses with time being a critical factor with witnesses recalling events relating to the termination of the applicant’s employment. 71
Ground 5 – Abuse of process
2.12. Section 587 of the Act provides that, 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 the Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. With regard to Toni Potter v Darwin City Council, 72 and Ashby v Commonwealth (No 4),73 the applicant’s actions in seeking to have the unfair dismissal Application kept open until after a mediation has been held in relation to the FCCA Claim amounts to an abuse of process. This is advanced on the basis that a binding settlement agreement has already been reached between the parties, and the binding settlement agreement specifically contemplates the full and final resolution of both the unfair dismissal Application and the matters the subject of the FCCA Claim.74
2.13. The applicant has acted prematurely and unreasonably where the respondent has put the applicant on notice that there is a live issue between the parties with respect to the settlement
Agreement, and the Respondent is relying on the binding settlement agreement reached on 19 June 2020 as a bar to the foreshadowed FCCA Claim. It is further evident that the applicant filing the FCCA claim is designed to place cost pressure on the Respondent to revisit the binding settlement already reached and create a further forum for mediation for this purpose. The applicant also considers it an advantage to have the unfair dismissal application kept open while seeking to mediate the FCCA claim. 75
Ground 6 – Fair go all round
2.14. Section 381 of the Act enshrines the principle established in re Loty and Holloway v
Australian Workers’ Union, 76 in which the expression “fair go all round” was used and the Commission must have regard to the objects of Part 3-2 of the Act which provide for a ‘fair go all round to both employers and employees.77 For the reasons already stated, the application should be dismissed.
Response to matters raised by the applicant on 24 June 2020
2.15. The applicant states that for the purposes of ease in administration, that both parties should adopt to resolve the matters in the FCCA and it would be a waste of resources to have two related matters on foot. The Respondent states: 78
• both matters have already settled; and
• the applicant has been put on notice of this fact since 23 June 2020 in numerous pieces of correspondence sent by the respondent; and
• the only reason there are two matters on foot is because the applicant is seeking to renege on the settlement agreement and initiate a separate claim in the FCCA despite there being a binding settlement agreement.
2.16. The applicant’s representative also states that the applicant is of limited financial means and having two matters on foot would cause an unnecessary expense. The Respondent submits that it is both embarrassing and disingenuous that the applicant is seeking to rely on this argument where: 79
• they have initiated a FCCA claim;
• he cannot prosecute both claims at the same time; and
• he is concerned about the expense that may be incurred to the respondent.
• the applicant has had the opportunity to resolve the application prior to the filing of the FCCA claim and conduct himself in a manner which would avoid unnecessary expense but the applicant has chosen to ignore the respondent’s requests to resolve the issue, and instead file a claim with the FCCA. These actions undertaken by the applicant are designed as a tactic to achieve a better settlement outcome.
2.17. In response to the matters raised by the applicant in the email of 24 June 2020 pertaining to the conduct of the mention/directions conference, the applicant not being permitted to put an offer of settlement in full of 20 weeks, the Deputy President changing the settlement figure to weeks pay, refusal of the respondent to use a standard settlement agreement, the applicant feeling ‘railroaded into accepting the global settlement, and the applicant experiencing an anxiety attack during the mention/directions conference, the Respondent states as follows: 80
• the Deputy President sought to clarify matters in dispute between the parties;
• the Deputy President asked parties to be sensible and flexible with settlement exchange;
• the Deputy President suggested that parties put forward the dollar amount of their offer as opposed to weeks’ pay for the purposes of understanding what was being offered and for the purposes of efficiency;
• the parties agreed to resolve the Application and all matters arising from the Applicant’s employment with the Respondent on a “global” basis, meaning that any settlement would be in full and final settlement of all matters between the parties arising from the Applicant’s employment with the Respondent
• the respondent did not refuse the standard settlement agreement proposed by the Deputy President, rather the deed produced by the Relief Associate contained minor drafting issues and did not fully record the global nature of the settlement, the Deputy President acknowledged that the Deed was not in the form of his usual liking, the respondent suggested that the parties’ solicitors resolve the drafting to ensure that the written terms properly recorded the agreement that had been reached between the parties with the parties undertaking to execute the terms of settlement and send a copy to the Commission;
• the applicant was afforded due process at all times with settlement discussions occurring at the request of the applicant’s solicitor. The respondent’s solicitor clarified whether discussions would be toward global settlement. the Applicant’s Solicitor confirmed that the Applicant was prepared to engage in settlement discussions on a “global” basis. At all times the applicant was represented by his solicitor and had the opportunity to obtain legal advice. The settlement agreement reached was contemplated to be in full and final settlement. that the Applicant now says that the agreement was not fairly reached this is not a matter of the Commission. The agreement is made, and the existing cause of action is extinguished; and
• with respect to the applicant experiencing an anxiety attack during the mention/directions conference, the applicant has not sought to rely on this fact nor correspond with the respondent after the settlement agreement was reached, rather the applicant has stated that “upon reflection … the settlement figure is simply too low”. There is no evidence to suggest that the applicant was not capable of entering into an agreement with the respondent, or was so impaired that he could not provide instructions to his solicitor. Rather the applicant initiated the discussions for settlement to occur, the applicant provided instructions to his solicitor during those discussions, and the applicant thanked the Deputy President at the conclusion of the mention/directions conference.
Application for costs
2.18. The respondent reserves the right to make a separate application with respect to costs and make further submissions if required by the Commission. 81
1 Appendix 1 – Summary of Submissions.
2 Email from Ms Vermey to the Chambers of Deputy President Hamilton, dated 9 December 2020.
3 Respondent’s Submissions, 1 – 36.
4 Applicant’s Submissions, 1.
5 Witness Statement of Mr Nethery dated 3 December 2020, 1 - 2.
6 Respondent’s Attachments KV-1, KV-2.
7 Applicant’s Submissions, 1, [2].
8 Ibid, [16]-[17].
9 Ibid, [7].
10 Witness Statement of Emily Harris, [6].
11 Email from Mr Bolwell to the Chambers of Deputy President Hamilton, dated 24 June 2020.
12 Ibid.
13 Applicant’s Submissions, [12]-[14].
14 Ibid, [15].
15 Digital Court Book, 51-55
16 Witness Statement of Mr Nethery dated 3 December 2020, 1 - 2.
17 Digital Court Book, 6, 59 – 63 [55] – [71].
18 Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, August 2014), [11.7] citing Dr Nicholas C Seddon et al, The Laws of Australia, Contract Law (Thomson Reuters, 2203), [7.3.160].
19 [2006] FCAFC 114, 26-27
20 Digital Court Book, 58.
21 Audio Recording of Mention (Part 1 of 2), 19 June 2020, commencing from 00:02:27 onwards.
22 Audio Recording of Mention (Part 2 of 2), 19 June 2020, 00:04:05.
23 Ibid, 00:05:00; 0:08:45.
24 Witness Statement of Mr Nethery dated 3 December 2020, 1 – 2.
25 Applicant’s Submissions, [2].
26 Respondent’s Attachment to Submissions KV-4.
27 Ibid KV-1.
28 Ibid KV-2.
29 Ibid KV-3.
30 Ibid KV-4.
31 Ibid KV-5.
32 Ibid, KV-6.
33 Digital Court book pp.3-4
34 Deed of Settlement proposed by Respondent.
35 Digital Court Book, 19
36 Ibid, 66: “[83] When asked how I thought things could progress and what I wanted. I was put on the spot and felt confused by the question and how to answer it so answered with words to the effect that, “to be perfectly honest I feel like going home and telling Em (my partner Emily Harris) I want to quit. I presume it’s 4 weeks required. I want to be here, but I don’t want to be here.” A number of employees claimed that he then told them he had resigned.
37 Audio Recording of Mention (Part 1 of 2), 19 June 2020, commencing from 00:03:00 onwards.
38 Applicant’s Submissions, [13]-[15].
39 Audio Recording of Mention (Part 2 of 2), 19 June 2020, 00:04:05.
40 [1954] 91 CLR 353.
41 [1954] 91 CLR 353.
42 Applicant’s Submissions, [16]-[17].
43 Deed of Settlement proposed by Respondent.
44 [1954] 91 CLR 353.
45 [1954] 91 CLR 353, [9].
46 Respondent’s Submissions, [21(a)-(g)].
47 Deed of Settlement proposed by Respondent.
48 [1954] 91 CLR 353.
49 [1954] 91 CLR 353, [9].
50 Respondent’s Submissions, [24].
51 Explanatory Memorandum, Fair Work Amendment Bill 2012 (Cth), [161]-[162].
52 [2018] FWC 6978.
53 [2011] FCA 975, [33].
54 Tomas v Symbion Health[2011] FWA 5488, [59].
55 Applicant’s Submissions, [1]-[5].
56 Ibid, [7], [12]-[15].
57 Ibid, [16]-[17].
58 Ibid, [18].
59 Ibid, [19].
60 [1954] 91 CLR 353.
61 Respondent’s Submissions, 5-6 [20]-[23].
62 [1954] 91 CLR 353.
63 Respondent’s Submissions, 6 [23]-[25].
64 Ibid, [30(a)-(f)].
65 Ibid. [34], [37].
66 Ibid, [39] – [42].
67 Ibid, [43].
68 Ibid, [46].
69 Ibid, [52] – [56].
70 Ibid, [57] – [60].
71 Ibid, [61].
72 [2010] FWA 6129.
73 [2012] FCA 1411.
74 Respondent’s Submissions, [63] – [68].
75 Ibid, [70] – [76].
76 [1971] AR (NSW) 95.
77 Respondent’s Submissions, [77] – [79].
78 Ibid, [80] – [81].
79 Ibid, [82] – [88].
80 Ibid, [89] – [100].
81 Ibid, [104] – [105].
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