Diamantis Stamoulis v David Jones P/L T/A David Jones

[2019] FWC 4693

[2019] FWC 4693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diamantis Stamoulis
v
David Jones P/L T/A David Jones
(U2018/10510)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 JULY 2019

Application for an unfair dismissal remedy.

[1] On 11 October 2018, Mr Diamantis Stamoulis made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Stamoulis said that his employment had been terminated by David Jones P/L T/A David Jones (David Jones) on 27 September 2018.

[2] On 18 October 2018, David Jones was served with a copy of the application of Mr Stamoulis. A Form F3 – Employer response to unfair dismissal application (Form F3) was filed by David Jones on 22 October 2018.

[3] A conciliation was held on 7 November 2018. The Commission’s records indicate the matter settled at conciliation. A letter confirming a settlement and attaching the Settlement Agreement was sent to parties via email on the same day.

[4] David Jones’ representative, Mr Patrick Walsh of DW Fox Tucker Lawyers, wrote to the Commission conciliator on 27 March 2019, advising that Mr Stamoulis’ representative, Mr Peter Palios of Palios, Meegan and Nicholson Lawyers, had written to him on 18 March 2019 advising that it was the intention of Mr Stamoulis to wait for the outcome of the proceedings before the South Australian Employment Tribunal prior to executing the Settlement Agreement. Mr Walsh conveyed to the Commission conciliator:

“I am instructed that my client is not prepared to await the outcome of proceedings before the (South Australian Employment) Tribunal and, in the event that the Terms of Settlement are not executed by the Applicant before the outcome of the proceedings in the Tribunal, my client’s offer to resolve the proceedings on the terms agreed will be rescinded at the time that a Judgment is handed down in the Tribunal.

I am instructed to seek to have these proceedings listed for a Directions Hearing, so that the Applicant can explain his reasons for the delay in completing the settlement.”

[5] The Commission conciliator responded to Mr Walsh on the same day stating:

“As indicated, in my email attaching terms of settlement sent out on the 7 November 2018 you should note the final paragraph of that letter, it reads ‘This concludes my involvement in the process. If any queries arise about the implementing the terms of settlement, please contact the other party directly’.

As indicated in that letter my roles in this matter has concluded.”

[6] Mr Walsh filed an F1 Application Form (Form F1) with the Commission on 18 April 2019 seeking to have Mr Stamoulis’ unfair dismissal application dismissed pursuant to s.399A of the Act or, in the alternative, pursuant to s.587 of the Act. Mr Walsh also sought costs under ss.400A and 611 of the Act.

[7] In the Form F1, it is stated:

•  Settlement was reached between David Jones and Mr Stamoulis at the conciliation conference on 7 November 2018; and

•  The Commission confirmed the settlement in a letter dated 7 November 2018, attaching the standard form settlement agreement for signing by the parties.

[8] David Jones signed the Settlement Agreement on 12 November 2018 and provided a copy to Mr Stamoulis’ representative for signing. On or about 18 April 2019, David Jones made payment of the agreed settlement amount in compliance with the terms of the Settlement Agreement reached between the parties at the conciliation.

[9] David Jones submits Mr Stamoulis has acted unreasonably since the conciliation conference and upon receipt of the payment made in accordance with the Settlement Agreement, by failing to sign the Settlement Agreement and withdraw his unfair dismissal application.

[10] I caused Directions to be issued to parties in respect of the s.399A application on 29 April 2019. Mr Stamoulis was directed to file any material as to why his application for an unfair dismissal remedy should not be dismissed pursuant to s.399A(1)(c) by no later than 4:00PM on Monday, 6 May 2019.

[11] Mr Palios filed a letter in response to the s.399A application on 1 May 2019, which stated:

“We have not been served with any application by DW Fox Tucker in this particular matter.

In relation to the direction, we advise that our instructions are that our client is not prepared to settle his matter on the basis discussed at the settlement conference.

Our client wishes to reserve his rights under Section 18 of the Return to Work Act and does not wish to prejudice his position in any manner.

We advise that Justice Dolphin who heard the matter in the first week of September 2018 at the South Australian Employment Tribunal, has not handed down his decision in relation to the Applicant's workers compensation claim.

We advise that if our client agrees to resolve his matter on the basis discussed at the settlement conference he may prejudice his entitlements under the Return to Work Act.

We advise that our client is prepared to have the matter referred to the suspense list pending the outcome of the SA Employment Tribunal judgement.”

[12] Amended Directions were issued by me on 10 May 2019 requiring David Jones to file reply submissions by no later than 4:00PM on 24 May 2019.

[13] Before reply submissions were received, the Commission received email correspondence from Mr Palios on 13 May 2019 enclosing a copy of a letter sent by him to Mr Walsh. The letter stated:

“We enclose a bank cheque addressed to David Jones Ltd in the sum of $6,363.00. We ask that you forward this cheque to your client.

We advised that this sum was deposited into our client's bank account by your client on or about 17 April 2019 without our client's consent or knowledge. Our client instructs that he does not wish to accept this payment from your client.

We reiterate that our client does not wish to prejudice his entitlements under the Return to Work Act 2014 by agreeing to resolve his matter on the basis discussed at the settlement conference.”

[14] David Jones filed submissions in reply on 24 May 2019. These state:

•  Settlement was reached at the conciliation conference on 7 November 2018 and this is not disputed;

•  The terms of settlement were that David Jones was to pay Mr Stamoulis a gross amount of $9,358.46 and that the terms should be recorded in writing using the standard form settlement agreement from the Commission;

•  The Commission’s letter dated 7 November 2018 confirmed the settlement reached and attached the standard form settlement agreement for signing by the parties;

•  David Jones provided a signed copy of the settlement agreement to Palios, Meegan and Nicholson Lawyers on or about 12 November 2018 and attempted to make payment of the settlement amount on or about 18 April 2019;

•  David Jones understands the only reason Mr Stamoulis no longer wishes to proceed with the settlement is that he “wishes to reserve his rights under s.18 of the Return to Work Act 2014” and yet he has provided no substantive reason or explanation as to why he needs to do so and/or the prejudice he would suffer as a consequence of the settlement of his unfair dismissal application;

•  In this regard, Mr Stamoulis has preserved his rights under s.18 of the Return to Work Act 2014 (SA) because the settlement agreement provides that nothing in the terms of settlement effects any claims, suits , demands, actions or proceedings Mr Stamoulis has or may have under statute, an industrial instrument or common law for a work-related injury illness , disease or death;

•  The settlement agreement was of a class that amounts to a binding contract (per Masters v Cameron) and a valid accord and satisfaction has been reached between the parties, which extinguishes the pre-existing cause of action upon which the unfair dismissal application of Mr Stamoulis relies;

•  Continued pursuit of the unfair dismissal application is clearly frivolous, vexatious and without reasonable prospects of success;

•  Absent the presence of duress, it is in the public interest that parties who reach agreement in a matter before the Commission are bound by its terms;

•  Mr Stamoulis may still pursue his rights under the Return to Work Act 2014 (SA); and

•  The unfair dismissal application of Mr Stamoulis should dismissed

[15] On 28 May 2019, further email correspondence was sent to the Commission from DW Fox Tucker Lawyers. It enclosed a copy of a letter dated 13 May 2019 sent by Mr Walsh to Mr Palios stating:

“We refer to your letter dated 6 May 2019 that enclosed a Bank Cheque for the sum of $6,363.00 ('the Cheque').

By way of returning the Cheque to you, the Cheque is enclosed with this letter.

We confirm that our client will not accept the return of the monies paid pursuant to the settlement reached between the parties, and now the subject of an application in the Fair Work Commissioner Proceedings U2018/10510.

We suggest that your client deposit the sum of $6,363.00 into your trust account pending the outcome of our client's application.”

[16] DW Fox Tucker Lawyers next wrote to the Commission on 30 May 2019, advising that Mr Stamoulis’ representative had advised that they will proceed with settlement and that subject to a signed copy of the Settlement Agreement, David Jones would withdraw its s.399A application.

[17] On 14 June 2019, I caused email correspondence to be sent to Mr Walsh of DW Fox Tucker Lawyers seeking an update on the status of the s.399A application.

[18] Mr Walsh replied on the same day, advising that David Jones had sent a further, signed copy of the Settlement Agreement on 30 May 2019, but was yet to receive a signed copy of the Settlement Agreement from Mr Stamoulis’ representative in reply.

[19] I caused further email correspondence to be sent to Mr Walsh on 18 June 2019 seeking advice as to whether David Jones wished to press the s.399A application. This elicited a response from Mr Walsh on 20 June 2019 which confirmed David Jones sought for the s.399A application to be determined by me.

[20] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. I have had regard to s.397 of the Act and consider it is possible for this s.399A application to be determined on the papers.

Consideration

[21] Section 399A of the Act provides as follows:

“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.

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[22] I am satisfied settlement was reached at the conciliation conference on 7 November 2018, having regard to the contemporaneous correspondence that was sent by the Commission to the parties and the subsequent correspondence that has passed between them. In any event, it does not appear this is in dispute.

[23] In Masters v Cameron, the High Court held that a binding agreement could come about in the following manner:

“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 classes. 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.

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.” 1

[24] I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron. I have noted that while Mr Stamoulis appear to change his mind, and conveyed that his subsequent reluctance to settle his unfair dismissal application on the basis discussed at the conciliation conference was due to his desire to reserve his rights under s.18 of the Return to Work Act 2014 (SA), one of the terms of the settlement reached appears to do just that.

[25] I have further noted the advice from the lawyers for David Jones on 30 May 2019 that they have subsequently been advised by the lawyers for Mr Stamoulis that they would proceed with the settlement. Finally, I have noted that the lawyers for Mr Stamoulis have not engaged in the correspondence that has been passing between my Chambers and the parties since 14 June 2019, despite having been sent copies. Nor have they disabused the expectation of the lawyers for David Jones that a signed settlement agreement from Mr Stamoulis would be forthcoming.

[26] Therefore, having regard to the circumstances of this matter, I am persuaded that Mr Stamoulis has had a number of opportunities to discontinue his unfair dismissal application after the settlement agreement with David Jones was reached on 7 November 2018 and his failure to do so since has been unreasonable. As such, I am persuaded that I should exercise my discretion under s.399A(1)(c) of the Act and dismiss Mr Stamoulis’ unfair dismissal application. An Order to this effect will be issued shortly.

[27] I should also indicate that having been persuaded that settlement was reached at the conciliation conference on 7 November 2018 and that the settlement agreement was of the first or second type discussed in Masters v Cameron, I consider that Mr Stamoulis’ unfair dismissal application could also have been dismissed pursuant to s.587(1)(c) of the Act on the basis that it had no reasonable prospects of success. This is because the binding settlement extinguished his existing cause of action (the unfair dismissal application) and replaced it with a new cause of action based on the agreement. 2

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Masters v Cameron [1954] 91 CLR 353.at 360.

 2   Australia Postal Corporation v Gorman [2011] FCA 975 at [31] and [33].