James John Dixon v Reach Crane Trucks
[2022] FWC 694
| [2022] FWC 694 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
James John Dixon
v
Reach Crane Trucks
(U2021/10116)
| COMMISSIONER BISSETT | MELBOURNE, 30 march 2022 |
Application for an unfair dismissal remedy – existence of a binding agreement between parties – no agreement reached.
On 10 November 2021 Mr James Dixon made an application to the Fair Work Commission seeking a remedy for unfair dismissal. Mr Dixon was employed by Reach Crane Trucks Pty Ltd (Reach). His employment ended on 2 November 2021 when Mr Dixon said his employment was terminated by Mr Shane Woods. Reach says his employment came to an end on 2 November 2021 when Mr Dixon resigned his employment.
The application of Mr Woods was subject to conciliation by a staff conciliator on 15 December 2021. The Commission’s electronic file indicates that on 16 December 2021 it was recorded that the matter had ‘resolved’. That day a letter was sent to Mr Dixon and Reach from the conciliator that said, in part, “I confirm that you reached a settlement agreement and I confirm the Respondent [Reach] will provide terms of settlement.”
On 21 December 2021 the conciliator wrote to Mr Dixon (and copied Reach) advising the process from there, namely:
· Reach would draft and send to Mr Dixon the terms of settlement which he should sign and return to Reach;
· The terms would then be complied with (money paid, statement of service provided);
· Mr Dixon should then discontinue the matter.
On 22 December 2021 Mr John Kvisle of Reach asked the Conciliator to send to him the Commission’s “standard terms” so that he could “insert the necessary sentence regarding [Mr Dixon] resigning” that Mr Dixon could then sign.
On 6 January 2022 the Commission received an exchange of emails between Mr Dixon and Reach. On 5 January 2022 Mr Kvisle sent Mr Dixon the “terms of Settlement we agreed” with respect to his application. Mr Dixon responded that he did not agree with clause four of the settlement agreement (which said “Notwithstanding the Applicant’s application mentioned above, the Applicant agrees and states that he resigned his employment with the Respondent on 2 November 2021”) as it did not reflect the basis of him leaving his employment. Mr Kvisle replied the following day thanking Mr Dixon for his email but stating that, as Mr Dixon was aware, “clause 4 is necessary for any settlement to occur” and noting this was discussed in conciliation. He advised that the offer, as outlined in the terms of settlement, would “stay open for a period of 14 days”.
On 6 January 2022 the Conciliator requested Mr Kvisle send him a copy of the written terms as sent to Mr Dixon.
The Commission’s records indicate in a file note that on 7 January 2022 Mr Dixon had a conversation with the Conciliator and said he was not willing to sign the agreement provided by Reach. The file note indicates the Conciliator contacted Mr Kvisle who said the clause 4 was necessary. Mr Dixon advised the Conciliator he would get advice from “his barrister and workcover insurer”.
On 10 January 2022 Mr Kvisle emailed the Conciliator and advised that, after further internal discussion, Reach required the inclusion of clause 4 in the settlement agreement. Mr Kvisle said that if Mr Dixon “is now unwilling to agree to that, then we are unfortunately in a position where the matter can’t be resolved informally” and asked to be advised of Mr Dixon’s decision.
On 30 January 2022 the Conciliator received an email from Mr Dixon which said (in the subject line) “Sorry for not getting back to you earlier as I have had a few issues with family I’m still not excepting (sic) that paper so I would like this to go a hearing”.
Request to have the matter heard
The request by Mr Dixon of 30 January 2022 was forwarded to me to consider. Following this a request was made to each party to advise if they considered the matter had settled by agreement and if there was an objection to the application going to hearing.
Reach advised that it considered the matter was settled and that it objected to the application proceeding to hearing. Mr Dixon said that agreement was reached but what was put in writing was beyond the terms agreed and that he was quite happy for the application to go to hearing.
Subsequently I sought submissions and evidence from the parties as to whether an agreement had been reached. Following receipt of the written material from each party a hearing was held on 8 March 2022.
Submissions and evidence
Mr Dixon said that in the first conciliation in December 2021 he put a proposal on the table to settle the matter which involved the payment of a specified amount and a letter detailing his period of employment and role with Reach. Mr Dixon said that the Conciliator spoke privately to Reach and came back to Mr Dixon and said that Mr Kvisle (who represented Reach at conciliation) advised he would need to go back to speak Mr Woods (from Reach) and would come back in 24 hours.
Mr Dixon said that 24 hours later “we all had a conversation” in which Mr Kvisle said that Reach would pay his two weeks’ pay and provide a separation letter. Mr Dixon said he agreed to this but when he received the written terms of settlement it contained clause 4 (that he had resigned his employment). He said he immediately told Mr Kvisle that he had not agreed to that clause so he would not be signing the agreement.
Mr Kvisle provided a statement in which he said that the matter was not resolved at the first conciliation in December 2021. He consulted Mr Woods and then had a conversation with the Conciliator in which he put a proposal for settlement that included the payment of two weeks’ pay, the provision of a statement of service on condition that Mr Dixon agree that he had resigned his employment with Reach. Mr Kvisle said he was advised by the Conciliator that Mr Dixon accepted those terms. He consequently sent the email of 22 December 2021 to the Conciliator in which he sought the Commission’s standard terms so he could “insert the necessary sentence regarding [Mr Dixon] resigning”.
Consideration
Whether a binding settlement agreement was reached by the parties is a matter of fact to be determined on the basis of the material before the Commission.
The question to be determined is if an agreement was reached either at the conciliation or the following day when Mr Kvisle put the revised offer to Mr Dixon through the Conciliator who apparently said it was accepted by Mr Dixon or when a written offer was put to Mr Dixon by Reach on 5 January 2022.The conduct of the parties following the time the agreement is said to have been reached is relevant to the determination of whether an agreement, in fact, had been reached.
In this case I am not satisfied that a binding settlement agreement was reached between the parties. I have reached this conclusion for three reasons.
Firstly, within four hours of the written terms of settlement being sent from Mr Kvisle on 5 January 2022 Mr Dixon responded that he did not agree with the terms. His response, as written, was unequivocal:
I don't agree. with clause four on settlement agreement as i didnt resign from the company i was told to leave and dont come back so can you remove clause four from the agreement as this is the only part i dont agree with so i will wait for your reply
This reply by Mr Dixon supports a conclusion that the terms of settlement, as presented to his, did not reflect what he had agreed to.
Second, in the email of 6 January 2022 from Mr Kvisle to Mr Dixon Mr Kvisle said “I confirm our offer as outlined in the Terms of Settlement I sent you yesterday will stay open for a period of 14 days from today.” This correspondence suggests that what was being put to Mr Dixon in the “terms of settlement” was an “offer” and not a document that purported to reflect an agreement already reached between the parties. Further, that email strongly suggests that the contents of the “terms of settlement” were still subject to negotiations between the parties.
Thirdly, on 10 January 2022 Mr Kvisle sent an email to the Conciliator in which he said:
After discussing the matter further, I can confirm that it is Reach’s position that yes, James agreeing that he resigned is a deal-breaker for us to come to an agreement.
If he is now unwilling to agree to that, then we are unfortunately in a position where the matter can’t be resolved informally.
That is, Reach acknowledged that there was no settlement reached between the parties.
In these circumstances I cannot conclude that there was any agreement reached between the parties as to the settlement of the dispute between them with such terms only to be reduced to writing.
In reaching my conclusion I do not cast doubt on the credibility of either Mr Kvisle or Mr Dixon. Rather it appears that, while the parties were intent and willing to settle the matter, the details of the settlement got “lost in translation”. This is not a criticism of the Conciliator who made all reasonable attempts and provided assistance beyond the conciliation itself to provide assistance to settle the matter. Rather, the circumstances of this matter demonstrate the risk in not bringing parties back together to jointly work through the proposed terms of settlement so that any misunderstanding or miscommunication is identified at the earliest possible time. I would note that the Conciliator made further attempts in January 2022 to resolve the matter but without success.
Given my finding that no settlement agreement was reached either at or after the conciliation on 15 December 2021, whether what was put in writing accurately reflects the terms discussed is a moot point such that I do not need to consider the principals in Masters v Cameron.[1]
Conclusion
Being satisfied that an agreement was not reached in conciliation or following conciliation the application for relief from unfair dismissal will be referred for arbitration. The parties should receive correspondence in relation to the application within the next week.
COMMISSIONER
[1] [1954] HCA 72; (1954) 91 CLR 252.
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