Holly Gilbert v Activ Foundation Incorporated
[2022] FWC 1363
•2 JUNE 2022
| [2022] FWC 1363 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Holly Gilbert
v
Activ Foundation Incorporated
(U2021/11708)
| COMMISSIONER BISSETT | MELBOURNE, 2 JUNE 2022 |
Application for an unfair dismissal remedy – matter settled at conciliation – request to reopen – where a binding agreement existed – application dismissed.
Ms Holly Gilbert has made an application to the Fair Work Commission seeking a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The application was made on 15 December 2021. Ms Gilbert was employed by Activ Foundation Incorporated (Activ) and her employment was terminated on 26 November 2022 for reasons related to a failure to be vaccinated for COVID-19.
The application was subject to a staff conciliation on 23 February 2022 where the matter apparently settled. Following the conciliation the staff conciliator sent a letter to the parties to this effect and the Commission’s file was closed.
On 30 March 2022 Ms Gilbert sent an email to the Commission advising that she “declined an offer of a $300 payout from Activ foundation and would like to proceed to a hearing.”
Arising from this correspondence the Commission sought information from Activ as to whether it considered a settlement agreement was reached at conciliation. Ms Jasmin Livsey for Activ replied on 31 March 2022. In that correspondence Ms Livsey indicated that Activ considered that a binding settlement agreement had been reached at conciliation, that the agreement was immediately binding on the parties and that there was no cooling off period with the terms of the agreement to be reduced to writing following the conciliation.
As a result of the correspondence from Ms Livsey and some further correspondence received from Ms Gilbert, on 31 March 2022 directions were issued requiring the parties to file and serve submissions and evidence in relation to the question as to whether a binding settlement agreement had been reached by the parties. The matter was subject to a hearing before me on 11 May 2022.
For the reasons that follow I am satisfied that Ms Gilbert reached a binding settlement agreement with Activ on 23 February 2022. In these circumstances I am also satisfied that Ms Gilbert’s application has no reasonable prospects of success and should be dismissed.
Submissions
Ms Gilbert gave evidence and made submissions in relation to her request to have her unfair dismissal application heard by the Commission.
Ms Gilbert agrees that a conciliation occurred on 23 February 2022 before a staff conciliator and submits that, prior to the conciliation, the staff conciliator asked her if she agreed to have the conciliation recorded. Ms Gilbert says that she consented to this recording.
Ms Gilbert also submits that, at no stage during the conciliation proceeding was she asked about, nor did she consent to, waiving the cooling off period.
Ms Gilbert says that before the close of business on 25 February 2022 [accepting a typographical error in her submissions] she emailed the staff conciliator and advised that she wished to reject the offer made by Activ to settle her claim. On receipt of an inquiry from Ms Livsey on 28 February 2022 as to whether she intended to sign the agreement Ms Gilbert replied that Ms Livsey should contact the staff conciliator as she had declined the offer within the three day cooling off period.
Ms Gilbert also submitted that she had been in hospital undergoing a medical procedure. She was discharged on 22 February 2022 and was still suffering the effects of the anaesthesia and pain killing medication at the time of the conciliation on 23 February 2022. She says that this affected her capacity to make a clear and informed decision. Ms Gilbert also says she mentioned during the conciliation that she was unable to speak properly because she was under the influence of medication and suffering from post-surgery complications.
Ms Gilbert agreed, in giving evidence, that she recalled the first offer of Activ but did not recall saying that she needed time to think about it and had no recollection that the second offer involved agreement to waive the cooling off period.
Ms Gilbert also agreed that conciliation ended because agreement was reached. She gave evidence that she received, but did not read, the letter from the staff conciliator confirming settlement of the application and the waiver of the cooling off period.
Ms Gilbert agreed that the first time she raised the effects of her surgery and medication was in correspondence to Ms Livsey on 31 March 2022 in reply to the initial correspondence from Ms Livsey in response to the Commission queries of Activ. Ms Gilbert gave evidence that she did not raise this any earlier as she was taking the “designated 6 weeks…to heal, rest and relax” following her surgery.
Ms Gilbert rejected the evidence of Ms Livsey as to what the staff conciliator said to Ms Gilbert of the cooling off period and recording the conciliation.
Ms Livsey gave evidence for Activ and submissions were made, relying on that evidence, as follows.
At the conciliation conference on 23 February 2022 the parties reached a binding settlement agreement to resolve Ms Gilbert’s claim that she had been unfairly dismissed. Activ submits that, on this ground, it is open to the Commission to dismiss the application of Ms Gilbert pursuant to s.587(1) of the FW Act.
In private session with the staff conciliator Ms Livsey said Activ made an initial offer to Ms Gilbert to settle her claim which was that:
· Activ would pay Ms Gilbert $50.
· The parties would utilise the Commission’s standard terms of settlement including the non-disparagement and non-disclosure provisions.
· Ms Gilbert would waive the cooling off period.
Ms Gilbert indicated she would like to consider the terms of that offer at which point Activ made a second offer that:
· Activ would pay Ms Gilbert $300.
· Ms Gilbert’s dismissal would be converted to a resignation.
· The parties would utilise the Commission’s standard terms of settlement including the non-disparagement and non-disclosure provisions.
· Ms Gilbert would waive the cooling off period.
Activ says that Ms Gilbert accepted this offer save for the conversion of her dismissal. Activ accepted this counter-offer of Ms Gilbert.
The parties resumed in joint conference with the staff conciliator where the following was conveyed to the parties:
(i)the parties had reached a settlement;
(ii)the Respondent [Activ] to pay a gross amount of $300 to Applicant [Ms Gilbert];
(iii)payment would be in 7 days after the parties had formalised the agreement in writing;
(iv)the Commission's standard settlement terms to be used for the purposes of recording the understanding;
(v)mutual non-disclosure and non-disparagement terms be included in the Commission's standard terms;
(vi)the parties had agreed to waive the cooling off period;
(vii)once the $300 has been received by the Applicant [Ms Gilbert], the Applicant is to file a notice of discontinuance with the Commission.
Activ said that the parties then left the conciliation with no further comment. Following the conciliation the Commission sent a letter to the parties confirming that agreement had been reached and that the cooling off period had been waived by the parties and that the signed terms should be exchanged between the parties.
As to Ms Gilbert’s submissions, Activ submits that:
· the staff conciliator advised that the session would not be recorded;
· its first and second offers to settle the matter included the waiving of the cooling off period with the second monetary offer given to support the waiving of the cooling off period;
· it accepted Ms Gilbert’s counter-offer to remove the conversion of the dismissal to a resignation;
· Ms Gilbert behaved in such a way that a reasonable person would believe that she was assenting to the terms of the contract (agreement) and intended to form a binding agreement;
· Ms Gilbert did not present at the conciliation to have any speech difficulties and did not state she was under the influence of any medication;
· Ms Gilbert was professional and pleasant in her dealings with the Commission
Activ submits that the agreement reached between the parties comes within the first class of agreements referred to in Masters v Cameron[1]. It says that a binding agreement has been reached between the parties and that agreement releases Activ from any and all claims arising from employment, the termination of employment and the proceedings. For these reasons it says the application should be dismissed pursuant to s.587(1) of the FW Act.
Consideration
Whether a binding settlement agreement was reached between the parties is a question of fact to be objectively determined by the Commission on the basis of the evidence before it.
For an agreement to be made the offer and acceptance must correspond. However, an acceptance which does not correspond is not necessarily a rejection of the initial offer but rather is a counter-offer capable of acceptance. A counter-offer accepted by the original offeror creates a binding settlement agreement.[2]
If parties have been in negotiation and reach an agreement but agree that the agreement will be dealt with in formal documentation, the agreement may fall into one of four categories:
· First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect.[3]
· Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document.[4]
· Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract.[5]
· Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.[6]
Agreements of the first and fourth category will bind the parties by the terms of their bargain notwithstanding any later disagreement between them about the terms to be included in the written agreement between them.[7]
It is necessary for me to determine, in the first instance, if an agreement was reached between the parties at the conciliation and then, importantly, if Ms Gilbert waived the cooling off period.
In considering this matter and reaching my conclusion I have determined that I prefer the evidence of Ms Livsey to that of Ms Gilbert as to the conduct and outcome of the conciliation before the staff conciliator.
I have come to this conclusion because I do not consider Ms Gilbert’s evidence reliable. Firstly, her evidence in relation to the staff conciliator telling her that the conciliation would be recorded is not concordant with the standard practice of the Commission where conciliation sessions before a staff conciliator are not recorded. It beggars belief that the conciliator would waiver from this standard approach. That the session was not recorded is supported by a review of the Commission’s file which does not hold a recording of the session.
Secondly, Ms Gilbert’s claim that she did not waive the cooling off period is at odds with the letter from the staff conciliator which said:
Thank you for your participation in today’s conciliation in the above matter. I confirm that you reached a settlement agreement and I attach terms of settlement.
I confirm that the parties have agreed to waive the cooling off period that applied to this agreement. (emphasis added)
The letter accords with the evidence of Ms Livsey as to the outcome of the conciliation. This weighs against the evidence of Ms Gilbert.
Ms Gilbert agrees she received this letter although says she did not read it. There was, otherwise, no correspondence from Ms Gilbert in response to this letter to suggests she had not agreed to waive the cooling off period.
Thirdly, Ms Gilbert’s evidence that she was suffering from the effects of strong medication was not raised by her until 31 March 2022, after her email in which she requested to have her application heard by the Commission. Ms Gilbert did not raise this at the conciliation (on her own evidence she said she could not speak properly because of surgery), in her initial request to have her matter heard or in her correspondence to the staff conciliator as to why no agreement was properly made on 23 February 2022.
Each of these matters raise issues as to the credibility and reliability of Ms Gilbert’s evidence such that I prefer the evidence of Ms Livsey.
I therefore accept that, at the conciliation, Activ put forward its first offer which Ms Gilbert indicated she wished to think about. In response to this, and in an effort to have the matter resolved that day, Activ put forward a further offer which included payment of $300 and for the dismissal to be converted to a resignation. On Ms Gilbert indicating that she did not wish to have the dismissal reverted to a resignation and, with no rejection of other terms, Activ accepted the counter-offer of Ms Gilbert as it was entitled to do. My conclusion in this respect is supported by the evidence of Ms Livsey and Ms Gilbert who both said that the conciliation ended because an agreement was reached and by the correspondence of the staff conciliator to the parties in which it was said that the cooling off period was waived.
I am therefore satisfied that the parties reached an agreement of the first kind referred to in Masters v Cameron summarised above. That is, that the parties reached a final agreement in conciliation and proposed to have those terms restated in a fuller form in a written agreement. This agreement was provided to both parties by the staff conciliator.
For the reasons given above, in assessing the evidence of Ms Gilbert and Ms Livsey I am also satisfied that Ms Gilbert and Activ waived the 3 day cooling off period as was reflected in the staff conciliator’s letter of 23 February 2022. The agreement reached at the conciliation was therefore immediately binding on the parties.
In Australian Postal Corporation v Gorman[8] Besanko J said:
An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.
That is, having reached an agreement to settle the unfair dismissal application (the accord and satisfaction), the settlement agreement has brought the unfair dismissal application to an end.
Section 587 of the FW Act states that:
587 Dismissing applications
(1)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 this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note:For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.0
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The power of the Commission to dismiss an application is wide and is not restricted to the circumstances in s.587(1) of the FW Act. In this case, however, I am satisfied that Ms Gilbert’s application seeking a remedy for unfair dismissal has no reasonable prospect of success as she has reached a binding settlement agreement which resolves the unfair dismissal claim. The application for unfair dismissal is dismissed on the Commission’s own motion. An order[9] to this effect will be issued with this decision.
COMMISSIONER
Appearances:
H. Gilbert on her own behalf.
J. Livsey for the Respondent.
Hearing details:
2022.
Melbourne by telephone:
May 11.
[1] (1954) 91 CLR 353 at 360
[2] See Singh v Sydney Trains[2017] FWCFB 4562 at [50] (Singh)
[3] Masters v Cameron (1954) 91 CLR 353 at 360 as cited in Singh at [53]
[4] Ibid
[5] Ibid
[6] Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd and Others (1986) 40 NSWLR 622
[7] Singh v Sydney Trains[2017] FWCFB 4562 at 54
[8] Australian Postal Corporation v Gorman [2011] FCA 975 at [31]
[9] PR742183
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