Kurt McGlynn v Dyno Nobel Moranbah Pty Ltd

[2021] FWC 2967

[2021] FWC 2967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kurt McGlynn
v
Dyno Nobel Moranbah Pty Ltd
(U2020/14650)

COMMISSIONER BISSETT MELBOURNE, 27 MAY 2021

Application for an unfair dismissal remedy – application settled post conciliation – file closed – request to have matter heard – binding agreement reached – no reasonable prospects of success – application dismissed.

[1] On 9 November 2020 Mr Kurt McGlynn made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr McGlynn had been employed by Dyno Nobel Moranbah Pty Ltd (Dyno) as an Electrical and Instrument Technician since 2013. His employment was terminated on 27 October 2020 for matters related to a security clearance.

[2] On 4 March 2021 the Commission received a letter from Donnie Harris Law in which it indicated they act on behalf of Mr McGlynn. A Form F53 – Notice of representative commencing to act and a Form F52 – Application for an order for production of documents or information to the Commission were filed.

[3] A review of the unfair dismissal file indicated that it had been closed on advice that a settlement agreement had been reached. The file was allocated to me for consideration and Mr McGlynn’s representative was advised as to my view of the status of the file. Mr McGlynn indicated that he wished to have the file reopened. The application was subject to a mention before me on 8 March 2021. Following this, directions were issued for the parties to file submissions on whether a binding settlement agreement had been reached which would act as a bar to further proceedings in the Commission.

BACKGROUND

[4] Mr McGlynn’s application was subject to conciliation before a staff conciliator on 4 December 2020. Mr McGlynn was represented at the conciliation by Shine Lawyers. Dyno was represented Ms Sally Stokes, Employee Relations Manager and Ms Megan Adams, Employee Relations Adviser for Dyno. The matter did not settle at conciliation but Dyno agreed to leave its offer “on the table” for a week. That offer was that Mr McGlynn could resign and that he receive a statement of service. Following conciliation, the staff conciliator emailed parties and advised she would hold the file for 7 days at which time, if no settlement had been reached the matter would be referred for arbitration.

[5] On 11 December 2020 Mr McGlynn’s then representative, Shine Lawyers, filed a Form F54 with the Commission in which it advised it ceased to act for Mr McGlynn.

[6] On the 14 December 2020 the staff conciliator again wrote to the parties and said that, absent advice that the matter had settled, the parties were requested to provide details to assist in future programming of the application. Dyno responded to this correspondence on 15 December 2020.

[7] There was, post this date, a substantial number of emails between Mr McGlynn and Dyno, prior to Mr McGlynn gaining further representation in March 2021 and a request being received for the Commission to hear his application.

[8] The following timeline of correspondence is taken from that filed in response to the directions by each party and from the Commission’s electronic file in relation to the application.

[9] On 14 December 2020 Dyno sent a letter to Mr McGlynn. That letter is not before the Commission.

Correspondence of 15 December 2020

[10] On 15 December 2020 at 7:05am Mr McGlynn sent an email to Dyno in which he asked “Will the resignation letter open the gate for me to receive my entitlements of long service leave?”. Ms Adams of Dyno responded to that email that day at 1:49pm and advised that, as per the Long Service Leave Act “LSL is not payable under resignation and therefore there will be no entitlement to payment.”

[11] On 15 December 2020 at 2:12pm Mr McGlynn wrote to Ms Adams in reply to the letter of 14 December 2020. The email concludes:

Just offer something and we can be done today??

[12] Ms Adams replied at 2:43pm as follows:

Dr Mr McGlynn

WITHOUT PREJUDICE SAVE AS TO COSTS

Without admission regarding your statements below, the Company’s offer to allow you to resign remains open for your consideration. We look forward to your response.

Kind Regards

Megan Adams

Employee Relations Adviser…

[13] At 4:29pm that day Mr McGlynn replied:

Very well. Lets do the companies offer and I shall resign and a reference letter.

[14] At 4:58pm that day Mr McGlynn replied to the correspondence from the conciliator of 14 December 2020 in relation to hearing details and said:

Settlement offer from Dyno was taken. Well I think. I haven’t heard back from Megan N Adams.

[15] At 5:34pm that day Ms Stokes replied to Mr McGlynn’s 4:58pm email:

Hello Kurt

Can you please confirm if you are accepting the offer to settle of converting the termination to a resignation with no financial compensation and no further payments to be made by the Company to you.

If you are in acceptance we will draw up the terms of settlement and send through for your signature.

Kind regards

Sally Stokes
Employee Relations Manager
IPL Dyno/Nobel

[16] At 5:38pm Mr McGlynn replied:

Yes. Could you do a resignation and reference letter.

Correspondence of 16 December 2020

[17] On 16 December at 9:00am Ms Stokes wrote to Mr McGlynn and said “We are able to provide a statement of service. Please advise if this is acceptable.” She followed this up at 9:21am and asked Mr McGlynn that, if it was acceptable, could he provide an address to which it should be sent.

[18] At 9:15am that day Ms Stokes also wrote to the conciliator and confirmed that “the parties have reached an agreement to settle the matter.” As a result the conciliator wrote to Dyno and to Mr McGlynn that morning confirming the matter had settled. That letter said, in part:

…I confirm that you have since reached a settlement agreement and that the terms of settlement will be sent out by Sally Stokes on behalf of the Respondent.

…

The Applicant will need to file a Form F50 “Notice of Discontinuance”… with the Commission, with a copy sent to the Respondent.

[19] Mr McGlynn replied to Ms Stokes’ 9:21am email at 9:25am and provided a street address.

Later correspondence

[20] On 18 December 2020 Ms Adams sent to Mr McGlynn a settlement and release agreement with respect to his claim. Mr McGlynn replied on 19 December 2020 as follows:

Unfortunately I can’t sign that document. The only agreement was that you supply a statement of service and have it recorded that I’ve resigned. I will likely taking my evidence and how I was treated further with government bodies, unions and media.

[21] On 4 January 2021 Ms Adams replied to Mr McGlynn:

Dear Mr McGlynn,

WITHOUT PREJUDICE SAVE AS TO COSTS

I refer to your previous correspondence of 19 December 2020. We are sorry to hear that you are not willing to sign the deed of release. A deed is standard upon settling a matter, and this is the deed that we provide for a settlement before the FWC. If you have any questions about the purpose of the deed or standard procedures, we recommend that you seek independent legal advice.

If you are not willing to proceed with this deed, please inform Jacqueline Williams at the Fair Work Commission of your decision and cc Sally Stokes and myself in the response so that we may all be on the same page.

As per previous communications, the Company continues to offer to allow you to resign and receive a statement of service subject to a deed.

Kind Regards,

Megan Adams

Employee Relations Advisor

SUBMISSIONS

Dyno

[22] Dyno says that:

•  The parties reached a binding settlement agreement;

•  The application should therefore be dismissed on the basis that it has no reasonable prospects of success.

[23] Dyno submits that the parties “engaged in a series of confirmatory emails” on 15 and 16 December 2020 in relation to the settlement of the application of Mr McGlynn for unfair dismissal. This resulted in Dyno forwarding to Mr McGlynn a proposed settlement and release agreement which Mr McGlynn indicated he could not sign as “the only agreement” was for a resignation and statement of service.

[24] In early 2021, on return from the Christmas close down, Dyno wrote to Mr McGlynn and asked that if he intended not to proceed he should contact the Commission and Dyno and advise them of such. No response was received from Mr McGlynn such that Dyno assumed the matter closed.

[25] Dyno, in response to the matter being raised by Mr McGlynn’s (now) legal representatives and following the mention before me in relation to the request of Mr McGlynn that his application be heard, forwarded a statement of service to Mr McGlynn. Dyno says that the failure to provide Mr McGlynn with a statement of service prior to March 2021 was an administrative oversight and this has now been provided.

[26] In its reply submissions Dyno says that Mr McGlynn agreed in his email to Dyno on 15 December 2020 at 5:38pm that he would accept the offer to settle of a resignation and statement of service with no further payment to be made to him. His submissions in relation to long service leave are without foundation. Further, under relevant Queensland legislation there is no entitlement to long service leave where a person resigns with less than 10 years’ service unless otherwise ordered by the Commission to make such a payment. No such order has been made.

[27] Dyno submits that, following the exchange of emails between it and Mr McGlynn on 15 and 16 December 2020 and Mr McGlynn’s advice to the Commission, the conciliator sent correspondence to the parties which said:

I confirm that you have since reached a settlement agreement and that the terms of settlement will be sent out by Sally Stokes on behalf of the Respondent.

[28] Mr McGlynn did not indicate in reply to the conciliator that she was incorrect.

[29] Mr McGlynn has not indicated that he rejected the settlement agreement but rather, by his email of 19 December 2020, indicated he could not sign the deed. Dyno posit that this could be because he was moving house at the time and was having technical difficulties in doing so, or that he had identified an error in the deed.

[30] Dyno submits that Mr McGlynn continues, in his submissions, to press for a statement of service and to have his departure designated as a resignation, despite knowing that Dyno has already performed these tasks.

[31] That Mr McGlynn continues to press Dyno to fulfil its obligations in relation to the settlement (resignation and statement of service) despite his refusal to sign the deed indicates that he is of the opinion that a binding settlement agreement has been made and that Dyno is bound to honour its obligations. Dyno says that it has performed its obligations and that the delay in doing so was administrative in nature. Prior to the mention of the request to have the matter heard before the Commission, Mr McGlynn had not previously raised with it the missing statement of service.

[32] Dyno submits that a binding settlement agreement can exist where a draft deed contains terms that go beyond those discussed or agreed to. Such agreement may also be binding without the deed being signed. Support for a conclusion that an agreement was reached between the parties in this matter can be found in the decision of Zoiti-Licastro v Australian Taxation Office(Zoiti-Licastro) 1where the “Full Bench found that a binding settlement agreement could exist where a draft deed includes terms beyond those the employee discussed or agreed to. Relevantly to the present matter, the Full Bench also found that such an agreement, including a release, was binding without a signed deed.”

[33] That Dyno has met its obligations without a written and signed deed supports a conclusion that the deed is of the first type described in Masters v Cameron. 2 The parties intended to be bound immediately on reaching agreement.

[34] Dyno submits that the fact that Mr McGlynn has received a statement of service and that his departure has been recorded as a resignation, in conjunction with his conduct in not objecting to the Commission’s 16 December 2020 letter which advised agreement had been reached or responding to Dyno’s letter of 4 January 2021 that he would not proceed is indicative that the parties intended to be bound upon reaching agreement on 15 and 16 December 2020.

[35] Dyno submits that Mr McGlynn has engaged in the following conduct:

•  Delayed serving a correct application on Dyno;

•  Failed to properly identify the respondent on the Form F3;

•  Did advise the Commission and Dyno that he accepted the settlement agreement;

•  Did not object to the Commission’s letter of 16 December 2020;

•  Did not respond to Dyno’s letter to him of 4 January 2021; and

•  Is attempting to open a closed matter.

[36] In these circumstances to allow Mr McGlynn to proceed with his application would be prejudicial to Dyno.

Mr McGlynn

[37] Mr McGlynn submits that there is no binding settlement agreement between the parties.

[38] Mr McGlynn states that, in its correspondence of 4 January 2021 to him by Ms Adams, Dyno said “As per previous communications, the Company continues to offer to allow you to resign and receive a statement of service subject to a deed.” Mr McGlynn says that the words “subject to a deed” prime facie creates an overriding condition that what was agreed between the parties “must be regarded as the intended basis for a future contract, and not as constituting a contract.”

[39] Further, Mr McGlynn says that it is relevant that Dyno did not provide him with a statement of service, noting that such supply was subject to a deed. That the statement was not provided prior to 19 March 2021 allows an inference to be drawn that Dyno was awaiting the executed deed before providing the statement.

[40] Mr McGlynn says that the language used, and the conduct of the parties indicates that no agreement was reached.

[41] Mr McGlynn further says that the proposed deed as drafted by Dyno went beyond that previously agreed by the parties in that Mr McGlynn maintained he was entitled to long service leave and this was not included in the deed. His refusal to execute the deed was that it went beyond that agreed is justified.

[42] Mr McGlynn says that:

•  The Commission’s decision (in his request to have his application heard must provide a “fair go all round” (s.381 of the FW Act);

•  The Commission’s decision must also provide “accessible and effective procedures to resolve grievances and disputes” (s.3(e) of the FW Act);

•  The commission can only dismiss an application where:

•  The application is not made in accordance with the Act;

•  The application is frivolous or vexatious; or

•  The application has no reasonable prospects of success.

[43] In circumstances where agreement has not been reached and in the absence of a binding agreement, Mr McGlynn says the application must remain on foot. Further, he says that his application does have reasonable prospects of success.

[44] In reply to the submissions of Dyno, Mr McGlynn says that the parties did not engage in a series of “confirmatory emails” on 15 and 16 December 2020, as the emails referenced by Dyno form only a part of the negotiations of the parties – specifically about the resignation and statement of service. These negotiations formed only a part of the (totality) of the release agreement ultimately sent to Mr McGlynn by Dyno.

[45] Mr McGlynn agrees that he accepted the offer of Dyno to have his departure recorded as a resignation and the provision of a statement of service. However, Mr McGlynn says that Dyno was premature in advising the Commission that the parties had reached agreement. Mr McGlynn submits that the correspondence from Dyno on 4 January 2021 made it clear that the intention was to form a binding settlement agreement subject to a deed and that, in the absence of the executed deed there is therefore no settlement of the matter.

[46] In any event Mr McGlynn says that Dyno did not perform its obligations under the deed as it did not provide the statement of service until after the mention in March 2021 before the Commission. However, Mr McGlynn says he did not seek the statement of service but rather notified the Commission that it had not been provided, noting that the supply of the statement was subject to deed. Dyno’s actions in providing the statement of service after the mention should be seen as an attempt to rebut his submissions that there is no binding agreement between the parties.

[47] As the classes of agreement set out in Masters v Cameron, Mr McGlynn says that the most relevant class in this matter is the third class where the intention of the parties is not to make a concluded bargain until a formal contract is executed. This, he says, is confirmed by the words of Dyno in the 4 January 2021 email which used the phrase “subject to a deed”. These words, he says, prime facie create an overriding condition that what was agreed must have been an intention to contract and not as constituting a contract. Without the executed contract there is no enforceable contract.

[48] Mr McGlynn says that he had no expectation that Dyno would meets its requirements under the deed because the deed had not been formally executed.

[49] Mr McGlynn says that his circumstances can be distinguished from that in Zoiti-Licastro v Australian Taxation Office where there was no evidence the agreement would be subject to written terms and in this matter the conduct of the parties demonstrates that there is no binding agreement absent an executed deed. Mr McGlynn says that no agreement was reached on 15 December 2020 as Dyno did not agree to provide the reference letter as sought by him and Dyno. The provision of the agreement on 16 December 2020 and the 4 January 2021 letter confirm that the offer to him was “subject to a deed”. Mr McGlynn’s correspondence of 19 December 2020 only sought to confirm that the deed went beyond what was agreed between the parties and he therefore was not agreeable to it.

[50] Mr McGlynn says that he was explicit in his refusal to accept the deed and did not intend to receive any benefit from it.

[51] As no binding agreement was made Mr McGlynn says that the decision in Australian Postal Corporation v Gorman (Gorman) 3 should not be applied

CONSIDERATION

[52] A number of matters remain in dispute between the parties in relation to this matter. First is a question of whether Mr McGlynn and Dyno actually made an agreement to settle the unfair dismissal application of Mr McGlynn. If an agreement was made the second question is as to what the terms of that agreement might be. It can then be determined if it is any of the types of agreement considered in Masters v Cameron.

[53] The determination of the existence of an agreement is a matter of fact. Whether an agreement was made is to be discerned objectively considering the actions of the parties.

[54] In Singh v Sydney Trains (Singh) 4 the Full Bench of the Commission set out the legal principles relevant to the question of whether a binding settlement agreement as follows:

[45] The central issue in this appeal requires consideration of whether the Deputy President correctly applied legal principles relevant to the question of whether a binding settlement agreement had been reached between Mr Singh and Sydney Trains.

[46] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited: 5 

“It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337).”

[47] The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed. 6  Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties' solicitors.

[48] An offer and acceptance must precisely correspond. The following principles are relevant to this requirement:

•  An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered. 7 

•  An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance. 8 

•  An acceptance will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree’s own words the effect of the offer. 9 

•  Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 10 For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.11

•  Similarly, if a purported acceptance of an offer merely includes the “machinery of working out what was meant by the offer, it is on the same plight as a request for information”. 12  Such a request for information does not revoke the offer and may constitute acceptance of the offer.

[49] Ultimately the question is whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered.” 13  Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.14

[50] A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. 15  A counter-offer accepted by the original offeror creates a binding agreement.16

[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 17 

[52] The phrase “‘in principle’ agreement” or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract. 18  However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.19 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.20

[53] 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. 21  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. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. 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.22

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them. 23 

[55] I endorse this approach and have been cognisant of these principles in reaching my decision.

[56] The first step in determining if an agreement was reached between the parties is to consider the conduct of the parties, including the correspondence between them.

[57] I should firstly state that I do not consider that any discussion in relation to a settlement of the matter before the Commission extended to Mr McGlynn’s long service leave. An inquiry – as opposed to a request that it form part of any settlement – was made by Mr McGlynn on 15 December 2020 at 7:05am. This inquiry was disposed of by the reply from Ms Adams later that day and it was not raised again. To the extent that Mr McGlynn’s representative now suggests that it was an “unsettled term” he is being disingenuous. I have, therefore not had regard to this discrete inquiry of Mr McGlynn in reaching my decision.

[58] I accept that, in conciliation on 4 December 2020 Dyno put “on the table” an offer to settle that involved Mr McGlynn being able to resign his employment and receive a statement of service.

[59] On 15 December 2020 apparently in response to correspondence sent to him (which is not before the Commission) Mr McGlynn said “just offer something and we can be done today”. He did not say what he wanted but clearly made no demand in relation to long service leave.

[60] In response to the direct request of Mr McGlynn Dyno then put forward an offer that he be allowed to resign.

[61] Mr McGlynn came back and sought more than this – his reply was “Lets do the companies offer and I shall resign and a reference letter.” (my emphasis). That is, Mr McGlynn put a counter-offer on the table to that of Dyno. He also advised the Commission conciliator that he had “taken” the settlement offer even though, at least in this exchange, the “settlement offer” was a resignation. It might be said at this point that Mr McGlynn had, by his advice to the Commission, accepted the offer of having his departure recorded as a resignation and nothing more.

[62] Ms Stokes replied to Mr McGlynn at 5:34pm and asked that he confirm the resignation. Her email also said If you are in acceptance we will draw up the terms of settlement. Four minutes later Mr McGlynn confirmed Ms Stokes’ email with a “Yes” but then asked: “Can we do a resignation and reference letter.” (emphasis added).

[63] The next morning on 16 December 2021 Ms Stokes advised Mr McGlynn that a statement of service could be provided. This was no more than a concession that Mr McGlynn’s demands were met and formed an acceptance of his counter offer.

[64] By his words I am satisfied that Mr McGlynn reached an agreement with Dyno to settle his unfair dismissal application before the Commission on 16 December 2020. The terms of that settlement were that his departure from Dyno would be recorded as a resignation and the provision of a statement of service. In making this agreement Mr McGlynn also indicated agreement that terms of settlement would be drawn up. His reply of “Yes” must be seen to be in reply to the totality of Ms Stokes’ email, including that Dyno would “draw up the terms of settlement”.

[65] Dyno subsequently sent a “settlement and release agreement” (settlement agreement) to Mr McGlynn which he indicated he would not sign. However, it is not apparent from the exchange between Dyno and Mr McGlynn that agreement on the settlement of his claim would not be final until the terms of agreement had been finalised and signed. Ms Stokes, in her last email of 15 December 2020 said:

Hello Kurt

Can you please confirm if you are accepting the offer to settle of converting the termination to a resignation with no financial compensation and no further payments to be made by the Company to you.

If you are in acceptance we will draw up the terms of settlement…(emphasis added)

[66] That is, the reaching of agreement to settle his claim was not dependent on the drawing up and finalisation of the settlement agreement. Rather, I take it that agreement was reached (Mr McGlynn replied “Yes” with his further request of a statement of service) with the intention that the agreement later be put in writing. This exchange was not indicative that the parties did not intend to reach a concluded bargain.

[67] Further, the conduct of Mr McGlynn in advising the Commission on 15 December 2021 at 5:58pm that the settlement offer from Dyno “was taken” is indicative that he considered agreement reached.

[68] I note that the settlement agreement subsequently sent to Mr McGlynn has some incorrect statements in it and does not appear to explicitly mention the statement of service, However, that upon seeing the settlement agreement, Mr McGlynn did not wish to sign it does not alter that he did reach an agreement with Dyno to settle his claim. To the extent that he objects to the settlement agreement it is not clear (and never has been clear) the extent of that objection except that he says it does not provide for long service leave (of which there is no evidence this was agreed or even pursued) and that it “went beyond” what was agreed being the resignation and statement of service. In this respect I would observe that this situation is not that different to that referred to in Brookfield Australia Investments Limited v Lucas Stuart Pty Limited 24where Stephenson J said:

30. I think that concession was well made. It is true that there was not, in terms, an element of the Offer that there be a deed. However, the Offer did, in my opinion, contemplate that, were it to be accepted, a document would be prepared to record its terms. Thus the Offer stated, as one of its elements, that Lucas "will release" Brookfield from "all claims for release of retention monies". In my opinion, it was implicit in that statement that a document would be prepared to set out the precise terms of that release.

31. In proposing a deed, Mr Hicks was stating that which would be implied by the law arising from the terms of the offer, namely, that it would be documented in some formal manner.

32. The relevant principle is set out in Carter on Contract at [03-250]: -

"Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement."

33. The learned authors refer to Turner, Kempson & Co v Camm [1922] VicLawRp 45; (1922) VLR 498 at 502. There Irvine CJ, (with whom McArthur and Macfarlan JJ agreed) proceeded on the basis that a response to an offer that did not "introduce any new terms, but only such terms as would reasonably follow consequentially on the agreement" was not a rejection of the offer.

34. The learned authors of Carter on Contract also refer to Lark v Outhwaite[1991] Lloyd's Rep 132 at 139 where Hirst J said that: -

"Statements which are not intended to vary the terms of the offer, or to add new terms, do not vitiate acceptance even where they do not precisely match the words of the offer, if the term merely makes express what would otherwise be implied."

35. My attention was drawn during argument to a similar observation made by Young J (as his Honour then was) in Howe v Connell (Supreme Court of New South Wales, 25 September 1997, unreported) where his Honour, referring to Stevenson v McLean (1880) 5 QBD 346 said: -

"It seems to me that if the 'counter-offer' merely goes to the machinery of working out what was meant by the offer, it is on the same plight as a request for information."

[69] In this case I am satisfied that the proposal by Dyno that there be a settlement agreement, with that settlement agreement to be drawn up by Dyno and as articulated in its email of 15 December 2020, was not a counteroffer and does not affect the agreement reached.

[70] Further there does not appear to be anything in the settlement agreement (and nothing was argued by Mr McGlynn) that would go beyond the “terms [which] merely make express what would otherwise be implied.” Mr McGlynn’s email to Dyno of 18 December 2020 suggests that he has rejected all of the terms of the settlement agreement except for that in relation to resignation and statement of service. This is not a credible position. To suggest that Dyno would have reached an agreement with Mr McGlynn that allowed Mr McGlynn to resign (recognised as beneficial to a person in such a situation 25) without receiving a release of some description is not credible.

[71] Even if it was that Mr McGlynn now says that terms such as the release and confidentiality were not agreed the proper course for him, as was found in Zoiti-Licastro, was to have indicated those terms with which he did not agree. He is yet to do so and the settlement agreement has not been signed although I understand Dyno has complied with its obligations under the agreement reached.

[72] The remaining issue in relation to the conduct of the parties is what is to be taken from the correspondence from Dyno to Mr McGlynn on 4 January 2021 where Ms Adams says that “the Company continues to offer to allow you to resign and receive a statement of service subject to a deed.”

[73] If it was that no agreement had been reached on 15 and 16 December 2020 it may be that this correspondence would be seen as a counteroffer. The difficulty for Mr McGlynn is that by this stage he had accepted the offer put by Dyno which was that he resign (and perhaps acceptance by Dyno of the statement of service). The correspondence was loose in its wording but, given the earlier correspondence of 15 and 16 December 2020, I do not consider it to have indicated that no agreement had been concluded.

CONCLUSION

[74] For the reasons set out above I am satisfied that an agreement was reached between Dyno and Mr McGlynn in settlement of his claim made to the Commission for unfair dismissal. I am satisfied that the agreement was of the first class of agreement described in Masters v Cameron.

[75] In Australia Postal Corporation v Gorman 26Besanko J said:

31 An accord and satisfaction extinguishes any 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 subsequent litigation of the original claim: it is an answer to the claim.

…

33 There is nothing in the [Fair Work] Act which suggests that an accord and satisfaction should not be recognised…As I have said, an accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such a cause of action is clearly capable of being considered frivolous or vexatious or without reasonable prospects of success.

[76] For the reasons given in Gorman, I am satisfied that the application for relief from unfair dismissal of Mr McGlynn has no reasonable prospect of success. Mr McGlynn settled his application with Dyno.

[77] Section 587 of the FW Act provides that the Commission may dismiss an application:

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.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[78] The powers of the Commission to dismiss an application are not limited to those specified in ss 587(1). This much is clear from the words “Without limiting when the FWC may dismiss an application…”. However, even if the powers to dismiss were so limited it would not affect my conclusion, based on the authority in Gorman, that this application has no reasonable prospects of success.

[79] The concept of a “fair go all round” as used in s.381of the FW Act should not be taken to mean that an applicant for unfair dismissal has the opportunity to change their mind and seek to run their unfair dismissal case after they have reached a settlement agreement with the respondent in the matter. Mr McGlynn in this case was legally represented, participated in conciliation before a staff conciliator and then ultimately decided to accept what he sought and was on offer from Dyno. He was not pressured into his decision by conciliation – that had concluded over a week earlier and told Dyno that he would consider any offer it had to make. On 15 and 16 December 2020 he repeatedly said he would settle in exchange for a resignation and statement of service. A fair go all round does not mean he gets an outcome he would accept and to run his case. Such an outcome might suggest a failure to afford the Respondent a fair go all round.

[80] Mr McGlynn has said that the Commission’s decision “must provide accessible and effective procedures to resolve grievances and disputes.” In doing so he calls up the objects of the FW Act at s.3(e). It is not apparent how Mr McGlynn suggests this object of the FW Act should be given effect in my decision. The FW Act provides a “balanced framework for cooperative and productive workplace relations” by, amongst other things providing access to dispute resolution procedures. The FW Act does this by giving employees such as Mr McGlynn access to the unfair dismissal provisions. The Commission facilitates this through the provisions of the FW Act. It is not incumbent upon a Member, in making a decision in a matter before them in accordance with the FW Act, to create a new or further process for resolving a dispute (where it is not otherwise required) or to allow an applicant to have another opportunity at a process already exhausted. Mr McGlynn has had access to a means to resolve his dispute – he made an application and has participated in conciliation. It is not required that he be given another opportunity to run has case where he has settled his claim.

[81] In circumstances where an agreement has been reached between Mr McGlynn and Dyno and where that agreement is of the first class described in Masters v Cameron I am satisfied that the application for relief from unfair dismissal made by Mr McGlynn has no reasonable prospects of success.

[82] I have therefore determined that the request to have his application heard should be refused and the application dismissed.

[83] An Order 27 to this effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant: 7 April 2021.

Respondent: 6 April 2021.

Printed by authority of the Commonwealth Government Printer

<PR730109>

 1 (2006) 154 IR 1.

 2 (1954) 91 CLR 353.

 3 [2011] FCA 975.

 4   [2017] FWCFB 4562.

 5 [2015] NSWCA 313 (Pavlovic) at [15].

 6   See, for example, Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 (Brambles).

 7   Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84].

 8   Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78].

 9   Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 26-27.

 10   Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34].

 11   Brookfield at [30]-[31].

 12   Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346.

 13   Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115.

 14   Redowood at [84].

 15   Capital Securities No. 1 Pty L.td v Saliba [2016] NSWSC 1093 (Saliba) at [77].

 16   Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334.

 17   Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA.

 18    Stephenson v Dwyer [2006] NSWSC 1439 at [37].

 19   Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91].

 20   Donaldson Coal at [91].

 21   Masters v Cameron.

 22   Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills).

 23   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432.

 24 [2012] NSWSC 1130.

 25   See Curtis v Darwin City Council [2012] FWAFB 8021 at [57].

 26 [2011] FCA 975.

 27   PR730130.