Frances Newchurch v Tangentyere Council Aboriginal Corporation

[2017] FWC 2653

[2017] FWC 2653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frances Newchurch
v
Tangentyere Council Aboriginal Corporation
(U2016/15087)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MAY 2017

Application for an unfair dismissal remedy – dispute as to whether matter settled.

[1] On 19 December 2016, Ms Frances Newchurch made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Newchurch stated in her Form F2 - Application Form that she was dismissed by Tangentyere Council Aboriginal Corporation (TCAC) on 28 November 2016.

[2] The matter was referred to conciliation on 27 January 2017. Ms Newchurch was represented by the Central Australian Aboriginal Legal Aid Service Inc (CAALAS) and TCAC by Mr Anton Duc of counsel. The Fair Work Commission’s file indicates that following the conciliation, parties were given “consideration time” until close of business on 1 February 2017. This was subsequently extended to close of business on 7 February 2017.

[3] On 8 February 2017, a file note by the Commission’s conciliator indicates there had been confirmation from both parties that a settlement agreement had been reached. The following day, correspondence was sent by the conciliator to the representatives of the parties confirming a settlement agreement had been reached and that the terms of settlement would be completed by the representatives of both parties. This correspondence was not sent directly to either Ms Newchurch or TCAC.

[4] On 21 March 2017, Ms Newchurch wrote to the Commission requesting that her unfair dismissal application be heard and determined.

[5] On 24 March 2017, the Commission sent correspondence to Ms Newchurch advising that I was considering dismissing Ms Newchurch’s application under s.587 of the Act because the material on the Commission’s file suggested it had no reasonable prospects of success. Ms Newchurch was directed to file submissions regarding this by close of business, 31 March 2017.

[6] In the same correspondence, TCAC was directed to file and serve evidence of it having paid the settlement monies by close of business, 7 April 2017.

[7] On 10 April 2017, I caused correspondence to be sent to the representative for TCAC, Mr Duc of counsel, seeking submissions in reply to the material filed by Ms Newchurch and advice as to whether TCAC agreed that no settlement was agreed to.

Ms Newchurch’s material and submissions

[8] In her letter to the Commission on 21 March 2017, Ms Newchurch had written:

• Her (then) representative, Ms Pip Abbott of CAALAS “definitely did not consider” her decision that she did not want to accept the offer from TCAC;



• She had been advised that the offer from TCAC was good and therefore, if she did not agree to it, she had to seek legal assistance to go forward;



• She agreed to view the documents before making a decision either way;



• She did not view the deed until after Ms Abbott took the steps to advise the Commission of the ‘settlement’;



• There were changes made she did not agree with; and



• Ms Abbott acted without her instructions in completing the settlement process.

[9] As part of her materials supplied in response to my request, Ms Newchurch included her email dated 30 January 2017 to Ms Abbott, in which she had stated:

“Just following up on my call to you this morning, I am not going to accept Tangentyere's offer. I won't come in for the appointment with you as it was for the re-wording of the third Separation Certificate and as I don't feel like it is the right decision for me then it is best if I wait until I can speak with Danielle about taking the next step...”

[10] Ms Newchurch also filed an email she sent to Ms Danielle Cooper of CAALAS on 5 February 2017, in which she had stated:

“I am sending you an attachment with what is on my mind in regards to the complaint.

…I want to let you know what is on my mind and I am going to explain my thoughts from [my] perspective and my concerns in relation to signing a deed and the impact it will have on me, personally, in the future.

I honestly don't see that it is a positive move, for me, to agree to sign a document that basically bounds me by confidentiality...I can’t speak about it with anybody from the moment I put my signature on the deed, prepared by the Tangentyere lawyer.

…

…my instincts are strong about not accepting their offer because I doubt that they have my best interests at heart.”

[11] In the attachment referred to, Ms Newchurch wrote:

“Hey Danielle

Friday morning I called to speak with you about the unfair dismissal case and left a message asking if you could please call me back, I was told you would be in the office at 10.30a.m.

I am told that you will be out of the office and in Tenant Creek for the whole of next week.

I would appreciate being able to share what is on my mind about the unfair dismissal complaint, try to explain it from my perspective and the fact that I am not completely comfortable about accepting the offer from Tangentyere.

I spoke with Pip and I was informed that an extension was given by the conciliator until next Tuesday but I was only aware of the change on Friday, in the late afternoon.

I am concerned that it might appear as though I am the one being indecisive and I feel under pressure to do what is expected of me, to accept the offer, I understand that from CAALAS' perspective they think that it is a good offer.

Also the belief that the changes would be the best way to end this swiftly, to cut ties and to 'move on' and the information remains private and confidential yet Tangentyere can’t accept the wording being changed and they suggested ‘Terminated’.

Tangentyere Council is making an issue out of adding the word ‘amicable’, but I
consider them wanting the word ‘terminated’ as being offensive.

I refuse to accept that term because it leaves it open to suggestions and it will in fact place me in a negative light and can be detrimental to my reputation, it is distressing that I am expected to overlook the impact it could have on me in the future.

…

I was willing to compromise, 'amicable' is one word to explain a mutual agreement to accept the termination, it doesn't place blame on either party, although, Tangentyere actually provided two different reasons on two separation certificates for the dismissal.

…

Danielle I do appreciate your legal advice, as with Pip, but I do not believe that taking the offer is the appropriate action for me personally, simply because it is the wrong choice for me, although it isn't a bullying and harassment complaint, it should be seriously considered that the information shared in the response is damaging so it is only fair that I have the equal opportunity to dispute those allegations.

I think it has been clear at some point, I would prefer to just go to the commission hearing, to allow everything to be heard...”

[12] On 16 February 2017, Ms Abbott sent a copy of the deed of settlement to Ms Newchurch. It had been signed by TCAC. On 22 February 2017, Ms Newchurch had advised CAALAS she wished to withdraw her instructions and no longer required it to represent her. This was confirmed by CAALAS in letters to Ms Newchurch dated 23 February 2017 and 6 March 2017. On 3 March 2017, Ms Newchurch sent an email to Ms Abbott and Ms Cooper in which she stated:

“As informed by the call to the CAALAS office, I chose to not sign the deed and take the offer and that has always been my decision. I have not received any further contact from you at all, to at least let me know the contact person at Fairwork Australia [sic], I did call to leave a message for you. I need to know whether the complaint is still open because as you know I have decided to go forward with the complaint without the legal support from CAALAS as I did not sign the deed...”

[13] The letter of CAALAS to Ms Newchurch on 6 March 2017 had indicated it would not be able to provide Ms Newchurch with a further grant of legal aid to cover continuing representation because it had formed the view that it was unlikely she was going to obtain a more favourable outcome at Arbitration. On 24 March 2017, CAALAS filed a Notice of Representative Ceasing to Act.

TCAC

[14] In response to the Commission's letter dated 24 March 2017, Mr Duc sent an email dated 7 April 2017, advising that no evidence could be provided that payment was made to Ms Newchurch by TCAC.

[15] On 16 April 2017, Mr Duc responded on behalf of TCAC to my request for a reply to Ms Newchurch's materials and its view as to whether it agreed that no settlement was agreed to. He acknowledged receipt of Ms Newchurch's 85 pages of material.

[16] Mr Duc submitted there was a concluded settlement and relied on Howey v Mars Australia Pty Limited t/a Mars Petcare Australia 1 (Howey) in which Deputy President Sams had found a concluded agreement had been reached at conciliation in the first class of agreements described by the High Court in Masters v Cameron.2 Mr Duc submitted that with Ms Newchurch and TCAC, they had intended to conclude the agreement and merely record it in the settlement terms as opposed to having reached an agreement in the third class in Masters v Cameron, in which the intention of the parties is not to make a concluded bargain at all, unless and until a formal contract has been executed.

[17] Mr Duc submitted it is clear:

• The parties were in agreement that the conciliator draft the terms of settlement.



• TCAC signed the terms of settlement and provided them to Ms Newchurch’s solicitor.



• The Form F3 was amended in accordance with the settlement.



• TCAC was prepared to pay the monies to Ms Newchurch and provide the statement of service on receipt of the signed terms, which it never received.



• TCAC negotiated in good faith to resolve the matter.

[18] Mr Duc submitted Ms Newchurch is bound by the terms of settlement and her application should be dismissed pursuant to s.587 of the Act.

Consideration

[19] In Masters v Cameron 3 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 dealt with by a formal contract, the case may belong to any of three classes. The three classes are: 4

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.

[20] Despite the submission of TCAC, this matter is not of the same nature as Howey. It was not settled at conciliation and the parties were instead given “consideration time” until close of business on 1 February 2017 and then 7 February 2017. This precludes a conclusion that there was an agreement reached at conciliation that comes within either of the first two classes of agreement in Masters v Cameron.

[21] During the “consideration time,” it is clear on the material before me that Ms Newchurch did not want to accept the offer from TCAC nor sign the settlement agreement and she communicated this to CAALAS, her (then) legal representatives. It is evident there were elements of the proposed terms of settlement with which she did not agree.

[22] The conciliator appears to have received advice from CAALAS that there was a settlement agreement on 8 February 2017 and CAALAS forwarded to Ms Newchurch a copy of the terms signed by TCAC on 16 February 2017. However, there is nothing before me to suggest that Ms Newchurch changed her mind, as evidenced in her emails of 30 January and 5 February 2017 to her then representatives, and reached agreement with TCAC either between 5 and 8 February 2017, or at any stage after that. Indeed, the materials indicate that by 22 February 2017, Ms Newchurch had decided to withdraw her instructions and prosecute her application in the Commission without the assistance of CAALAS. The withdrawal of the instructions seems to have been precipitated by advice from CAALAS that further legal aid would not be forthcoming because it had formed the view that Ms Newchurch was not going to be able to achieve a better result than the settlement on offer with TCAC.

[23] Having regard to the material before me, I cannot conclude Ms Newchurch reached agreement with TCAC or that CAALAS had persuaded her to change the views she expressed during the “consideration time” so as to clear the way for its advice to the conciliator on or by 8 February 2017 that there was a settlement agreement. I am not satisfied there are binding terms of settlement and therefore, I decline to dismiss Ms Newchurch’s unfair dismissal application pursuant to s.587 of the Act. It will now be referred for further directions so that its merits can be heard and determined.

DEPUTY PRESIDENT

 1   [2012] FWA 6259.

 2 (1954) 91 CLR 353 at 360-361.

 3 (1954) 91 CLR 353.

 4   Ibid at 360-361.

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