Jeff Draper v Adelaide brighton ltd T/A Central premix

[2018] FWC 985

[2018] FWC 985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeff Draper
v
Adelaide brighton ltd T/A Central premix
(U2017/10605)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 FEBRUARY 2018

Application for an unfair dismissal remedy – matter settled – application dismissed pursuant to s.587 of the Act.

[1] On 2 October 2017, Mr Jeff Draper made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act). He named Adelaide brighton ltd T/A Central premix (the Respondent) as his employer.

[2] The application was referred to conciliation at 9:15am on Monday 23 October 2017. At conciliation, both Mr Draper and the Respondent represented themselves. In such circumstances, the Fair Work Commission (the Commission) practice is to offer the self-represented parties a three business day cooling off period in relation to any settlement reached by them at conciliation, unless they agreed to it being waived.

[3] At the conciliation, the parties appeared to reach a settlement agreement. The offer of a three business day cooling off period was made and accepted and this was confirmed in correspondence the conciliator sent to them on 23 October 2017, after the conciliation, which stated:

“Thank you for your participation in today’s conciliation in the above matter. I confirm that you reached a settlement agreement and I confirm that the terms of settlement are to be sent out by Ms Marchi on behalf of the Respondent.

As discussed, a three day cooling off period now applies. I will hold the file for three business days to allow you (the parties) time to consider the agreement reached at conciliation. Unless I hear from either of you in writing by the close of business on Thursday 26 October 2017 I will assume the matter is resolved in the terms agreed and I will close the file accordingly.

If one of the parties does not want to proceed with the settlement and advises me during the cooling off period, I will refer the matter for arbitration before a Member of the Commission.” (emphasis in original)

[4] On Monday 23 October 2017 at 3:02pm, Ms Debbie Marchi, Human Resources Business Partner for the Respondent, emailed terms of settlement to Mr Draper and stated the following:

“Hi Jeff

As agreed at the conciliation meeting today attached is our Termination Deed. The three day cooling off periods ends COB Thursday 26 October 2017. Can you please ensure you return the signed Deed via email within 7 days of the cooling off period. When we receive the signed Deed we will organise payment within 7 days of receipt.

Also attached is the F50 - Notice of Discontinuance Form. Once you have signed the Deed can you please sign the F50 and lodge with the Fair Work Commission and serve us with a copy of your application.

If you have any question regarding the attached please don’t hesitate to give me a call.”

[5] The Commission file records that the conciliator received a telephone call in the afternoon of Thursday 26 October 2017 from Mr Leo Close of Close Consulting Employment Relationships, who advised he was representing Mr Draper. In this conversation, Mr Close indicated that his client wished to request the cooling off period be extended for an additional day so he could seek further advice from his representative regarding settlement. The conciliator advised Mr Close that because there had been an agreement reached at conciliation, she would simply hold the Commission file for one more day (i.e. until 27 October 2017) before closing it. The conciliator subsequently advised the Respondent of her conversation with Mr Close.

[6] There is no record of either Mr Draper or Mr Close contacting the conciliator on 27 October 2017.

[7] In a telephone conversation on Monday 30 October 2017, the conciliator was informed by Mr Close that he would encourage Mr Draper to accept the terms of settlement. Mr Close also suggested the file could be referred for arbitration if needed but the conciliator advised him that matters are only referred for arbitration upon advice from parties that the settlement agreement had collapsed. The conciliator’s file note records that because neither party had contacted her within the cooling off period to formally indicate the settlement had collapsed, the file would be closed. It also records that Mr Draper spoke with the conciliator on the afternoon of 30 October 2017 and her told her he would speak with Mr Close later. However, prior to the file being closed at approximately 9:00am on 31 October 2017, neither Mr Close nor Mr Draper made further contact with the conciliator.

[8] Mr Draper sent an email to the Commission at 2:37pm on 31 October 2017 and stated the following:

“To whom it may concern

I jeff draper have decided after seeking advice and looking over the whole situation and evidence again and taking all things in consideration i still think I've been very unfairly treated. And i think it would be in my best interest to have this matter taken further and also have my case and evidence seen and heard in court. I will be retaining the services and advice of Leo close and he will be representing me and running my case for me from this point onwards (sic).”

[9] The Respondent was forwarded this correspondence from Mr Draper on 1 November 2017 and subsequently advised that Mr Draper’s request had been referred for consideration, with the parties to receive correspondence from the Commission in due course.

[10] On 27 November 2017 the Commission advised the parties that the matter had been referred to Commissioner Bissett, acting Panel Head – Termination of Employment, stating:

“Our records show that this matter was settled at a conciliation conducted by the Commission on 23 October 2017. An email to that effect was provided to the parties on 23 October 2017.

In light of this, the Commissioner is considering whether she should, of her own motion, dismiss Mr Draper’s application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.”

[11] This letter also advised Mr Draper that prior to a decision being made as to whether his application would be dismissed, he was to file and serve evidence as to why his application should not be dismissed.

Submissions of Mr Draper

[12] Mr Close filed both a Form F53 - Notice of representative commencing to act and submissions on behalf of Mr Draper on 4 December 2017, which included the following assertions:

“…

3) On 15 October at 09:43, I received a text communication from Solicitor Mr John Typaldos for Mr Draper, handling his WorkCover claim.

4) Mr Typaldos sought advice from me in assisting Mr Draper in his Unfair Dismissal Application.

5) At 12:36 on 25 October 2017, I received a text message from Mr Draper introducing himself and asking me to contact him.

6) I contacted Mr Draper via telephone and was briefed on the matter and at my request, I was forwarded all documentation available to date on the matter.

7) I am aware a telephone conciliation took place on 23 October 2017 before Conciliator Jill Gates.

8) Ms Gates forwarded to the parties’ correspondence acknowledging their respective participation in the conciliation and indicated a settlement was reached between the parties.

9) I spoke with Ms Debbie Marchi for the respondent shortly after receiving the documentation from Mr Draper and we discussed the offer made by the respondent to Mr Draper.

10) I advised Ms Marchi of Mr Draper’s reluctance to accept the offer at this stage and I would await further instructions from Mr Draper…”

[13] It was further submitted by Mr Close that the email subsequently sent by Mr Draper to the Commission on 31 October 2017 was clearly indicative of his decision to“proceed with the matter and move to Arbitration”. With regards to the conciliation, Mr Close submitted that:

“ …

13) Mr Draper was unrepresented in the telephone conciliation and being unfamiliar with the machinations of the processes and formalities of an Unfair Dismissal Conciliation, believed he was in a position to represent himself, as the system is ultimately designed to support this.

14) However, with hindsight this was not the case and he believes he was unfairly dismissed from his employment with the respondent.”

Submissions of the Respondent

[14] Pursuant to directions from the Commission, Ms Marchi filed submissions for the Respondent in reply on 11 December 2017. They largely addressed the Respondent’s contention that the matter had settled at conciliation on 23 October 2017. In this regard, it was submitted by the Respondent that it had agreed to settle the matter on the basis that Mr Draper be paid the amount of five weeks’ payment of wages in addition to the three weeks already paid upon his termination and would not be required to repay a $200 petty cash loan. The Respondent further submitted that it agreed to the cooling off period applying to the settlement, and referred to its email sent to Mr Draper on 23 October 2017 attaching terms of settlement.

[15] Ms Marchi also stated she received a telephone call from Mr Close on 30 October 2017 in which he advised he was representing Mr Draper and that Mr Draper “required one additional weeks (sic) pay and he would sign the Deed”.Ms Marchi stated she told Mr Close that the Respondent would not offer a further week’s pay in addition to what had been offered at conciliation. She also stated that Mr Close then advised he would seek further instructions from Mr Draper. Ms Marchi stated that she had not received any further contact from Mr Close as at the date of her writing the submissions of the Respondent.

Consideration

[16] The Commission is not bound by the rules of evidence but they provide a useful guide to the admission of evidence. The hearing of this matter was one in which the making of an agreement was in issue. As such, evidence of the agreement can be adduced. 1

[17] The three business day cooling off period the Commission offers was available in this matter as both parties at conciliation were self-represented. It was offered and neither party elected to waive it. The cooling off period expired at the close of business on Thursday 26 October 2017.

[18] The central issue for me to determine is whether a binding settlement agreement has been reached between Mr Draper and the Respondent.

[19] In Masters v Cameron 2, the High Court held that 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 classes. The three classes are:

1. 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.

2. 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.

3. 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. 3

[20] As to whether there is a binding agreement in place, it is clear from the correspondence that is before me that both the conciliator and the Respondent shared the view that the matter had been settled at the conciliation on 23 October 2017. The letter from the conciliator was unequivocal and the terms of settlement to be provided by the Respondent were not said to be subject to any conditions, apart from the rights the parties retained until the expiration of the cooling off period.

[21] Mr Draper did not indicate he did not wish to be bound by the settlement agreement prior to the expiry of the three business day cooling off period. At its highest, Mr Draper’s case is that his representative, Mr Close, spoke with Ms Marchi of the Respondent “shortly after receiving the documentation from Mr Draper”, without specifying when this was. Mr Close said that when he spoke to Ms Marchi, “[I] advised Ms Marchi of Mr Draper’s reluctance to accept the offer at this stage and I would await further instructions from Mr Draper.” This was not unequivocal advice that the settlement agreement had been rejected but in any event, I am not persuaded that it can be concluded that Mr Close spoke with Ms Marchi on 25 October 2017.

[22] While it is evident, from his email sent on 31 October 2017, that Mr Draper had reversed his decision to agree to settle the matter, neither he nor Mr Close communicated this to the conciliator or the Respondent within the three business day cooling off period which expired on Thursday 26 October 2017.

[23] I am not persuaded the request made to the conciliator by Mr Close on 26 October 2017 had the effect of extending the three business day cooling off period by an additional day. Apart from not being able to do this unilaterally, the conciliator’s advice to Mr Close in response to his request was not to that effect. She simply indicated that she would hold the file until 27 October 2017, before closing it on the basis that parties had reached an agreement to settle the matter. In practical terms, the conciliator had to hold the file until then because the cooling off period did not expire until close of business on 26 October 2017. In any event, Mr Close did not advise that the settlement was rejected on 26 October 2017 and neither Mr Close nor Mr Draper contacted the conciliator on 27 October 2017 with advice to this effect.

[24] Certainly there is nothing before me suggesting the Respondent agreed to extend the cooling off period. Ms Marchi stated that she was not contacted by Mr Close until 30 October 2017, at which time she did not agree to vary the settlement agreement. It is the combination of Ms Marchi’s account of her first contact with Mr Close, together with the conciliator’s file note of her conversation with Mr Close on 26 October 2017 that leads me to conclude that there was no suggestion that Mr Draper was had unequivocally rejected the terms of settlement prior to the expiration of the cooling off period.

[25] There was, on the material before me, no further contact between either Mr Draper or Mr Close and the Commission until the follow up telephone call from Mr Close on Monday 30 October 2017, during which he indicated to the conciliator that he would encourage Mr Draper to accept the terms of settlement. Mr Draper’s email rejecting the settlement agreement was not sent until the afternoon of 31 October 2017.

[26] I therefore consider that agreement was reached at the conciliation on 23 October 2017, the agreement was reflected in the terms of settlement document sent by the Respondent and these terms did not change the substance of what had been agreed at the conciliation. I am satisfied the agreement fell within either the first or second category in Masters v Cameron and in either case, there was a binding contract that neither party rejected during the cooling off period.

[27] In Australia Postal Corporation v Gorman 4, Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.5

[28] His Honour stated:

“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” 6

[29] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that has no reasonable prospects of success.

[30] Section 587(1) of the Act provides as follows:

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.

[31] As I have found that the parties reached agreement at the conciliation on 23 October 2017 and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron and was not rejected by either party during the cooling off period, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. The settlement agreement that was made is a complete answer to Mr Draper’s claim that he was unfairly dismissed.

Conclusion

[32] For the reasons outlined above, I find that Mr Draper entered into a binding settlement of his claim and therefore, his application for unfair dismissal remedy is dismissed. An order to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

<PR600425>

Printed by authority of the Commonwealth Government Printer

 1   Evidence Act 1995 (Cth), s.131(2)(f).

 2 (1954) 91 CLR 353.

 3   Ibid at [360]-[361].

 4 [2011] FCA 975.

 5 Ibid at [31].

 6 Ibid at [33].