Jackson Duku v Ore Investments Pty Ltd

[2020] FWC 5316

[2020] FWC 5316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jackson Duku
v
Ore Investments Pty Ltd
(U2020/10057)

DEPUTY PRESIDENT BEAUMONT PERTH, 22 OCTOBER 2020

Application for an unfair dismissal remedy - application to dismiss pursuant to ss 399A(1)(c) or 587(1)(c).

[1] On 22 July 2020, Mr Jackson Duku (Applicant) made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth)(the Act) (the original application). The Applicant was a former bus driver of the respondent employer, Ore Investments Pty Ltd (Respondent). He had been dismissed on the grounds of misconduct on 6 July 2020.

[2] The matter had been programmed for hearing. However, the parties requested a further conciliation conference with a view to resolving the dispute giving rise to the application. On 21 September 2020, a conciliation conference was held with both parties.

[3] Toward the end of the conciliation conference, the parties confirmed their agreement to settle the matter. The parties were informed that the specific terms they had agreed upon would be placed in the Commission’s template deed of release (Terms of Settlement) which also included a release, a mutual confidentiality clause, and a mutual non-disparagement clause. The parties were further informed that there was no cooling off period and that all that remained was for the Terms of Settlement to be signed. Both parties expressed their acceptance of this agreement and an understanding of the next steps to be taken.

[4] On receipt of the Terms of Settlement, which had been signed by the Respondent, the Applicant contacted Chambers by telephone, at 1515hrs on 22 September 2020. The Applicant stated that he did not intend to sign the deed of release sent by the Respondent to him (earlier that day). The Applicant has also stated that he intended to seek legal representation and continue to a hearing.

[5] Directions were issued by Chambers on 22 September 2020, concerning the potential dismissal of the application under s 587 of the Act. The Applicant was required, by 29 September, to file the materials he relied upon concerning the dismissal of his application under s 587 of the Act. No submissions, witness statements or any other documentary materials were received.

[6] The Respondent, in accordance with the directions of 22 September 2020, filed its submissions. Accompanying the Respondent’s submissions was an application to dismiss the original application pursuant to s 399A of the Act and s 587 of the Act.

[7] An email was sent from Chambers on 5 October 2020, alerting the parties that the Commission had not received the Applicant’s materials, that the Applicant had not complied with the direction issued on 22 September 2020, and if the Applicant required an extension of time in which to file his materials he was to make such a request by 1600hrs on 5 October 2020. No further correspondence was received from the Applicant, except for him providing the details of his mobile phone number on 6 October 2020.

[8] At the commencement of the hearing, I informed the parties that there were two issues to be considered. First, whether the original application should be dismissed pursuant to s 587 of the Act on the basis that the original application had no reasonable prospects of success. I noted that the Commission has the power to dismiss the application of its own motion under section 587. Second, in light of the Respondent’s application, whether the matter should be dismissed pursuant to s 399A(1)(c) and (b) of the Act.

[9] It was observed that the Applicant had been provided with an opportunity to seek an extension of time in which to provide any materials he wished to rely upon in response to the application to dismiss his application.

Legislative framework

[10] Section 587(1) of the Act reads:

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.

[11] 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.

Submissions of the Applicant

[12] While the purpose of the hearing was clearly explained to the Applicant, regrettably his submissions focused on the merits rather than the issue at hand. On that basis, I have not traversed them.

Submissions of the Respondent

[13] In its application the Respondent relied upon three grounds for its application to dismiss the original application. The first, the original application had no reasonable prospects of success. The second, the Applicant had failed to discontinue the application after a settlement agreement had been concluded. The third, the Applicant had failed to comply with a direction or order of the Commission relating to the application.

[14] At hearing, the Respondent predominately made submissions concerning the original application having been frivolously made. In this respect the Respondent referred to its own internal investigations into the Applicant’s complaints made whilst he was employed. The Respondent noted that it had gone to great lengths to resolve the matters the Applicant had complained of, yet the Applicant still took further action by disclosing to the Respondent’s client, ‘BHP’, the matters complained of and resolved.

[15] Traversing what passed at the conciliation conference on 21 September 2020, the Respondent submitted that it had agreed to pay the Applicant an amount of money and allow the Applicant to clear his name by having a resignation on the record. However, as was the case in his employment, said the Respondent, the Applicant stated he was going to do one thing and then acted contrary to the agreement reached – its terms, and the resolution of the matter.

Consideration

[16] I am satisfied settlement of the application was reached at the conciliation conference on 21 September 2020. In this respect, I have had regard to the agreement that was reached by the parties at the conciliation conference, noting that the parties were informed all that was left for them to do, was to sign the Terms of Settlement and that there was no cooling off period. In any event, it does not appear that what occurred at the conciliation conference is in dispute. What appears to have occurred is simply that the Applicant at a later point has changed his mind as to the course of action he wished to pursue.

[17] The Terms of Settlement contained a mutual release clause, a confidentiality clause and a non-disparagement clause. The release clause in relation to the Applicant indicated that he released the Respondent from all claims in relation to his employment excluding any workers’ compensation or superannuation claims.

[18] In Masters v Cameron, 1 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 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.

[19] I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron. I have noted that the Applicant appeared to change his mind and conveyed a subsequent reluctance to settle his unfair dismissal application. The basis for the change of mind seems simply due to his desire to pursue his claim further.

[20] I am persuaded that settlement was reached at the conciliation conference on 21 September and that the Terms of Settlement was of the first or second type discussed in Masters v Cameron. I consider that the unfair dismissal application should be 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 the Applicant’s existing cause of action (the unfair dismissal application) and replaced it with a new cause of action based on the agreement. 2

[21] Further, I am of the view that the Applicant has had the opportunity to discontinue his unfair dismissal application after the Terms of Settlement were reached with the Respondent on 21 September 2020. His failure to do so since has been unreasonable. As such, I note that s 399A(1)(c) of the Act, could have been relied upon to dismiss the unfair dismissal application.

[22] For the reasons given above, there was a binding settlement agreement reached at the conciliation conference regarding the unfair dismissal application. That agreement brings to a conclusion the unfair dismissal application and as a consequence the application for unfair dismissal is therefore dismissed pursuant to s 587(1)(c). As there exists a binding settlement agreement between the Applicant and the Respondent, in the alternative the application is dismissed under s 399A(1)(c) of the Act.

[23] An order will be issued with this decision. 3

DEPUTY PRESIDENT

Appearances:

Mr. Jackson Duku, Applicant
Mr. Guy Brownlee for the Respondent
Ms. Carmel Littlewood for the Respondent
Mr. Kaden Smith for the Respondent

Hearing details:

2020;
Perth (by telephone);
September 21.

Printed by authority of the Commonwealth Government Printer

<PR723312>

 1 [1954] HCA 72; (1954) 91 CLR 353.

 2   Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 211 IR 450.

 3   PR723761.