Gail Maher v W Griffiths & Co Pty Ltd

[2014] FWC 2988

[2014] FWC 2988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gail Maher
v
W Griffiths & Co Pty Ltd
(U2014/3)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MAY 2014

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] Ms Gail Maher alleged that her dismissal by W Griffiths & Co Pty Ltd (Griffiths) was unfair.

[2] A conciliation conference was conducted on 5 February 2014 but no resolution was reached.

[3] On 6 February 2014, Ms Maher sent an email to the conciliator, but not to Griffiths, in which she outlined the terms on which she was prepared to settle the matter. That offer was open until the close of business on 6 February 2014. An email was forwarded by the conciliator to Mr Wayne Griffiths, the representative of Griffiths, outlining Ms Maher’s offer. Unfortunately, that email did not advise Mr Griffiths that the offer expired at close of business that day.

[4] On 7 February 2014, Mr Griffiths forwarded a counter offer to the conciliator in which he rejected Ms Maher’s offer and put forward a counter offer. Ms Maher advised that she received this email. Ms Maher did not respond to this email.

[5] On 6 March 2014, directions were issued for the parties to file material by 31 March 2014.

[6] On 28 March 2014, Mr Griffiths sent Ms Maher a text message in which he said “you said in the mediation you were prepared to accept 5 weeks pay and payment of training course with resignation instead of dismissal and statement of service. Is this still the case? If so company is prepared to accept this. If you agree to this we need your acceptance of this. ..... We await your reply.” Ms Maher did not reply to this text message.

[7] On 31 March 2014, Ms Maher filed material in support of her unfair dismissal application. Griffiths did not comply with the directions but sought an extension of time to file its material by 24 April 2014. Over the objection of Ms Maher, an extension to 24 April 2014 was granted.

[8] On 26 April 2014, Griffiths applied to have Ms Maher’s application dismissed either under s399A or under s587 of the Fair Work Act 2009.

[9] Griffiths agreed that their application could be determined on the papers. Ms Maher sought a hearing of the application. Given however my decision in this matter, I decided that a hearing was not necessary. There was no factual dispute between the parties. The only issue that needed to be determined was whether the parties had settled Ms Maher’s unfair dismissal claim.

[10] Griffiths submitted that Ms Maher had made an unconditional offer to settle the matter, which was not subject to a time limit. It submitted that there was a binding agreement.

[11] Upon seeing the email sent by Ms Maher to the Fair Work Commission (the Commission), Griffiths submitted that the condition imposed by Ms Maher in her correspondence to the Commission was not clear and further, Mr Griffiths was not aware of the condition.

[12] Further it submitted that despite the condition and Mr Griffiths’ counter offer, a rejected offer could remain operative.

[13] I do not accept that Ms Maher’s email to the Commission was unclear. It stated that if Mr Griffiths did not accept the offer by close of business then the matter was to be listed for hearing. While I accept that Mr Griffiths was unaware of the condition, that does not change the fact that Ms Maher’s offer expired on 6 February 2014 and it had not been accepted by Mr Griffiths before it expired.

[14] It is clear that once Mr Griffiths made a counter offer, Ms Maher’s offer was extinguished and was not able to be resurrected by the text message from Mr Griffiths on 28 March 2014. What happened on 28 March 2014 was that Griffiths made a further offer to settle which was not accepted by Ms Maher. Ms Maher, after the counter offer was received, did not repeat or revive her offer. There is no basis on which I could conclude that it remained on foot.

[15] As there was never a settlement agreement between the parties, it cannot be said that Ms Maher has failed to discontinue her application after a settlement agreement has been concluded, 1 nor that her claim has no reasonable prospects of success2.

[16] Griffiths’ application is dismissed.

[17] Ms Maher has filed material in support of her unfair dismissal claim. I will issue directions that Griffiths file its material on both its jurisdictional objection and the merits of the claim by 20 May 2014 and Ms Maher can file any material in reply by 27 May 2014. This will allow the matter to proceed to hearing on 2-4 June 2014.

DEPUTY PRESIDENT

<Price code A, PR550325>

 1   See s.399A

 2   Australia Postal Corporation v Brent Gorman and another [2011] FCA 975 at [31]-[33]

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