Indu Sareen v University of Southern Queensland
[2018] FWCFB 6798
•5 NOVEMBER 2018
[2018] FWCFB 6798
The attached document replaces the document previously issued with the above code on 5 November 2018.
Amending the name of the representative at [3]
Associate to Deputy President Gostencnik
Dated 5 November 2018
| [2018] FWCFB 6798 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Indu Sareen
v
University of Southern Queensland
(C2018/4774)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 5 NOVEMBER 2018 |
Appeal against decision [2018] FWC 4659 of Commissioner McKinnon at Melbourne on 13 August 2018 in matter number U2018/3040; whether binding settlement agreement; no arguable case of appellable error identified; public interest not enlivened; permission to appeal refused.
Introduction
[1] Ms Indu Sareen seeks permission to appeal against a decision of Commissioner McKinnon issued 13 August 2018 (Decision) 1. The effect of the Decision was to dismiss the unfair dismissal application lodged by Ms Sareen pursuant to s.394 of the Fair Work Act 2009 (FW Act) against the University of Southern Queensland (USQ) on the basis that the application had no reasonable prospects of success owing to a settlement agreement reached between the parties.
[2] Prior to her dismissal Ms Sareen worked for the USQ as a Senior Internal Auditor. Ms Sareen commenced employment with the USQ in April 2015. Ms Sareen was advised that it had been alleged she had behaved inappropriately towards another staff member and those allegations were set out in correspondence dated 6 November 2017. The allegations were investigated and Ms Sareen was dismissed on 20 March 2018 for serious misconduct. On 22 March 2018 Ms Sareen made an unfair dismissal application to the Fair Work Commission seeking a remedy for the alleged unfair dismissal against her former employer, USQ.
[3] The application for permission to appeal was heard on 25 September 2018. At the hearing, Ms Sareen appeared on her own behalf and Ms Hedy Cray, Lawyer from Clayton Utz appeared with permission for USQ.
Background
[4] The circumstances in which the Commissioner came to consider whether to dismiss Ms Sareen’s application for an unfair dismissal remedy arose out of a purported settlement agreement that had been made at the conclusion of a conciliation conference conducted by a Fair Work Commission Conciliator on 24 April 2018. Both parties were legally represented at the conciliation. It was common ground that at the conclusion of the conciliation conference Clayton Utz acting for USQ were to draft the Deed of Release rather than relying on the Fair Work Commission terms of settlement.
[5] On 30 April 2018 USQ provided Ms Sareen with the Deed of Release containing the settlement terms previously discussed at the conciliation being 12 weeks’ salary, substitution of her dismissal with a resignation, a statement of service and a nominated point of contact for any queries from potential future employers. The Deed also contained terms including confidentiality, non-mutual releases and non-mutual bars to proceedings.
[6] Ms Sareen disputed some of the terms of the Deed through her lawyer and subsequently sought for her application to proceed to hearing on the grounds that a settlement had not been reached.
[7] On 6 June 2018, Australian Workplace Lawyers ceased acting for Ms Sareen.
[8] On 8 August 2018 a hearing was held before the Commissioner. Ms Sareen was self-represented in those proceedings. Having taken into consideration the submissions of the parties the Commissioner formed the view that settlement terms had been agreed during the conciliation and those terms were to be formalised in a Deed of Release to be prepared by USQ’s lawyers. 2 The Commissioner decided that at the time of the agreement, there was no mutual intention between the parties about any departure from, or addition to, their agreement.3
[9] The Commissioner concluded that she was satisfied “that the accord and satisfaction between the parties is a complete answer to Ms Sareen’s unfair dismissal application.” For that reason the Commissioner dismissed the application forming the view that it had no reasonable prospect of success.
Appeal Grounds
[10] Ms Sareen advanced two broad appeal grounds which can be summarised as follows:
1. The Commissioner made a significant error of fact by making a finding that “there was accord and satisfaction reached between the parties in this matter” as there remains a dispute between the parties.
2. The Decision is disharmonious with an earlier decision of the Commissioner (Erasmus v GJ Consulting T/A A&K Lievesley Electrical and Solar 4) where, faced with closely similar facts, a different finding was made.5 Ms Sareen further submitted that the Decision is attended with sufficient doubt to warrant reconsideration.6
[11] Ms Sareen submitted that the outcome of the conciliation conference was properly characterised as being of the third category described in the decision of Masters v Cameron 7 wherein the intention of the parties was not to make a concluded agreement unless and until a formal contract was signed.
[12] USQ submitted that Ms Sareen’s submissions in the appeal were not consistent with her submissions provided at the hearing on 8 August 2018 and as such they were concerned that Ms Sareen was seeking to use the appeal process to amend her own case as opposed to identifying any error of fact or law in the Decision. 8
[13] Ms Sareen raised an additional ground of appeal during the hearing before us being that she suffered a psychological injury due to her dismissal and consequently her judgment was impaired by reason of her mental condition during the conciliation. Whilst we note that it is not uncommon for someone who has been dismissed to suffer from some level of emotional distress Ms Sareen has not advanced any evidence in support of her claim and we decline to grant leave to Ms Sareen to amend her appeal grounds.
[14] As to whether the grant of permission was in the public interest it was put that the Decision manifests an injustice and that, given the diversity of decisions on this matter at first instance, the guidance of a Full Bench is required. 9
The Commissioner’s Decision
[15] The basis for the Commissioner’s findings are set out in [9]-[14] of the Decision. At [9]-[11] the Commissioner sets out the evidence of Ms Sareen and Mr David Madeley an employee of USQ. The Commissioner noted at [9] that Ms Sareen gave evidence in the hearing about the discussion in conciliation on 24 April 2018 and that Ms Sareen had focussed on obtaining a reference from USQ and confirmed that compensation was discussed but could not remember the details. She accepted that there was an understanding that her employment record would be changed to reflect her resignation from employment. She also agreed that a statement of service was discussed and that Mr Chris Smith of USQ was to be the contact person for future employment enquiries.
[16] The Commissioner at [10] and [11] of her Decision states that:
“[10] Ms Sareen gave evidence that a Deed of Release forwarded to her after the conciliation conference contained a number of terms and conditions that were not discussed at all during conciliation and that were all in USQ’s favour. She said she was not told that after conciliation there would be “no other avenue available”. She also said that since the conciliation. Mr Smith would not take her phone calls.
[11] Mr Madeley, who is employed by USQ, also participated in the conciliation conference on 24 April 2018. He gave evidence that offers were exchanged during the conference and that Ms Sareen’s legal representative made an offer to settle the unfair dismissal claim for 12 weeks’ salary. He said USQ accepted the offer and also agreed that a statement of service would be provided, with Chris Smith of USQ to be the point of contact for any inquiries. Mr Madeley said it was understood that Clayton Utz was to prepare the Deed of Release reflecting the terms agreed.”
[17] After considering the evidence from the parties the Commissioner was satisfied that an agreement to settle Ms Sareen’s unfair dismissal application had been reached. Her findings are set out in [13]-[19]. At [13]-[15] the Commissioner makes a finding that the settlement agreement reached between the parties falls within the second category of Masters v Cameron. Those paragraphs are reproduced below:
“[13] I am satisfied on the evidence that there was an agreement to settle Ms Sareen’s unfair dismissal application in return for payment of 12 weeks’ salary, substitution of her dismissal with a resignation, a statement of service and a nominated point of contact for any queries from potential future employers being Chris Smith. I find that these were the only terms of settlement agreed and that the settlement agreement was to be formalised in a Deed of Release to be prepared by Clayton Utz.
[14] Mr Madeley also said at the conclusion of the conciliation conference there was discussion between the parties’ legal representatives about ‘standard terms’ in the Deed of Release dealing with confidentiality and non-disparagement. Ms Sareen was adamant that there was no discussion about confidentiality, non-disparagement or mutual release. Mr Madeley’s evidence on this question was after prompting from his legal representative.
[15] I am satisfied that there was an accord and satisfaction reached between the parties in this matter on 24 April 2018. All terms of settlement were agreed, and at the time of the agreement, there was no mutual intention between the parties about any departure from, or addition to, their agreement. USQ’s performance of the agreed terms was conditional upon Ms Sareen’s execution of a Deed of Release.”
[18] The Commissioner concluded:
“[16] The accord and satisfaction binds the parties to join in bringing the formal contract into existence and then to carry it to execution. Unfortunately, that has not occurred because of certain post-conciliation conduct as well as a dispute over whether the proposed Deed of Release contains more expansive terms of settlement than had been agreed. The latter difficulty can be overcome by USQ revising its proposed Deed of Release to reflect simply what was agreed, and no more.
…
[18] If neither party now seeks to be bound by the agreement reached on 24 April 2018, they can enter into a new agreement to vary or extinguish that agreement. In the meantime, the existence of an accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement of 24 April 2018. The Commission can recognise a binding settlement and dismiss an application that has no reasonable prospects of success on that basis under section 587 of the Act.”
[19] The Commissioner dismissed the application being satisfied that the accord and satisfaction between the parties is a complete answer to Ms Sareen’s unfair dismissal application. For that reason, she decided Ms Sareen’s unfair dismissal application has no reasonable prospects of success and made an order to that effect.
Consideration
[20] An appeal under s.604 is by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 10 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[21] Whether s.400 applies to decisions made under s.587 of the Act was considered in Australian Postal Corporation v Gorman 11in which Besanko J said:
“[37] The question of whether there was or was not a binding settlement agreement is a question of fact, although no doubt informed by legal principles. In this case in considering whether permission to appeal should be granted and in considering the appeal itself the Full Bench was required to apply s 400 of the Act. I did not understand the first respondent to contend otherwise. It seems to me that the Senior Deputy President’s decision was a decision made ‘under this Part’ within subsection 400(2) despite the fact that s587 is in Part 5-1 of the Act. The Senior Deputy President’s decision was decision to dismiss the first respondent’s application made under s394 for a remedy for unfair dismissal. That is a decision under Chapter 3-2 in the same way as an order for re-instatement or compensation would be a decision under that Part. Even if FWA’s general power to dismiss is contained in subsection 587(3), it is part of FWA’s powers when it makes a decision under Chapter 3 Part 3-2. The same reasoning applies if regard is had not to the order but to the ground upon which the order was made, that is, that the continued pursuit of the application is frivolous or vexatious.”
[22] In Gill v Rio Tinto Aluminium Ltd T/A Rio Tinto Weipa 12the Full Bench of the Commission explained the relevant approach to s.400 of the Act and its application to appeals of decisions made under s.587 of the Act stating:
“The decision that is the subject of the Notice of Appeal is a decision dismissing an application for an unfair dismissal remedy, that is, an application for an order under Division 4 of Part 3-2 of the Act. Section 399A of the Act contains a power to “dismiss an application for an order under Division 4…” but it is not the only source of power under which an application for such an order may be dismissed. As the note immediately underneath s.399A(1) makes clear “…another source of power of the FWC to dismiss applications for orders under Division 4..” is to be found in s.587. Thus, although s.587, the source of the power that was exercised, is to be found elsewhere (as is the case with many other procedural and substantive powers that might be exercised in the course of an unfair dismissal remedy application hearing) the decision that is the subject of this appeal, was a decision to dismiss the application for an order under Division 4 of Part 3-2 of the Act and was thus a decision under that Part for the purposes of s.400(1).” 13
[23] It therefore follows that although s.587, the source of the power that was exercised by the Commissioner is to be found elsewhere, the decision that is the subject of this appeal, was a decision to dismiss an application for an order under Division 4 of Part 3-2 of the Act and was therefore a decision under that Part for the purposes of s.400 (1). Section 400 provides:
“400 Appeal rights
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[24] In Coal & Allied Mining Services Pty Ltd v Lawler and others 14, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.15 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 16
[25] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.17 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.18
[26] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 19
[27] Ms Sareen contends that the Commissioner erred in finding that a binding settlement had been reached between the parties and that the outcome of the conciliation conference should have been properly characterised as falling within category three in Masters v Cameron. USQ submitted that there had been a binding agreement reached at the conciliation that fell within the second category referred to in Masters v Cameron.
[28] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. Three of the categories were discussed in Master v Cameron in the following passage:
“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.” 20
[29] A fourth category is that described in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 21 where the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by consent, additional terms.
[30] In each of the first two categories identified in Masters v Cameron and in the fourth identified in Baulkham Hills there will be a binding contract. In the first and fourth categories there is a contract binding the parties at once to perform the agreed terms whether the contemplated formal or additional document comes into existence or not. In the second category there will be a contract binding the parties to join in bringing the formal contract into existence and then to carry it into operation. The agreement in this category is binding immediately but the performance of a particular term or terms will not be required until a formal document is executed by the parties. This is so even though there may be later disagreement between the parties about the terms that are to be included in the formal document to be executed.
[31] We are not persuaded that any of the grounds of appeal on which Ms Sareen relies raise any issue of importance or general application nor has Ms Sareen been able point to any matter that casts doubt to findings made by the Commissioner in the Decision.
[32] The Decision is consistent with the established authorities including those cases to which the Commissioner expressly referred. The contention that the parties did not discuss the specific terms of the Deed of Release does not render the agreement reached during the conciliation invalid or unenforceable. The Commissioner’s finding that there can be an agreement in existence whilst the terms of a Deed of Release remain in dispute is not inconsistent with the second category in Masters v Cameron. The Commissioner correctly identified the problem had arisen because of the complexity of the Deed and that this could otherwise be rectified by the USQ preparing a Deed ‘to reflect simply what was agreed, and no more’.
[33] Further we are not persuaded Ms Sareen has been able to establish any arguable case that there is an error of fact which would lead to the conclusion that the circumstances in which the agreement was made would fall within the third category of Masters v Cameron.
[34] We are not persuaded that Ms Sareen has established an arguable case that the Commissioner erred in her findings that a binding agreement had been reached on each of the points set out in [13] of the Decision. Further we are not persuaded that Ms Sareen has made out an arguable case of error in as much as she contended the Commissioner erred in not concluding the circumstances of the agreement fell within the third category of Masters v Cameron or that the submissions of Ms Sareen disclose any arguable error of fact.
[35] We are not persuaded by the submissions of Ms Sareen that there is disparity of principle in Eramus and the Decision of the Commissioner. Eramus and this case were decided on the relevant facts. The decisions are not disharmonious in their application of the principles set out in Masters v Cameron. Unlike in Eramus Ms Sareen was legally represented at the conciliation and whilst the actual detail of the terms to be contained within the Deed were not discussed, the parties agreed that the terms of the agreement would be reflected in a Deed of Release to be prepared by the USQ’s representatives.
[36] We are not satisfied that Ms Sareen has highlighted that there is a diversity of decisions at first instance that would require the guidance of a Full Bench. Further, we are not satisfied that the decision is attended with sufficient doubt to warranted reconsideration.
[37] On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s exercise of her discretion, of the kind discussed in House v King 22or an arguable case of any significant factual error made by the Commissioner. We also do not consider that an arguable case has been made out that the Commissioner's conclusion was unreasonable, manifested by any injustice or counter-intuitive. Nor are we persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest. In accordance with s.400(1) of the Act, permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms I Sareen on her own behalf.
Ms H Cray of Clayton Utz on behalf of the Respondent.
Hearing details:
2018.
Melbourne and Brisbane (video hearing):
September 25.
Printed by authority of the Commonwealth Government Printer
<PR702032>
1 [2018] FWC 4659
2 Ibid at [13]
3 Ibid at [15]
4 Erasmus v GJ Consulting T/A A&K Lievesley Electrical and Solar[2018] FWC 4135
5 Annexure to Appeal of Indu Sareen at [15]
6 Annexure to Appeal of Indu Sareen at [17]
7 (1954) 91 CLR 353
8 USQ’s outline of submissions in relation to appeal at [3]
9 Annexure to Appeal of Indu Sareen at [16]
10 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
11 [2011] FCA 975
12 Gill v Rio Tinto Aluminium Limited T/A Rio Tinto Weipa[2017] FWCFB 4540
13 Ibid at [21]
14 (2011) 192 FCR 78 at [43]
15 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
16 [2010] FWAFB 5343, 197 IR 266 at [27]
17 Wan v AIRC (2001) 116 FCR 481 at [30]
18 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
19 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
20 (1954) 91 CLR 353 at 360
21 (1986) 40 NSWLR 622
22 (1936) 55 CLR 499
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