Leigh Priest v Albury Blue Logistics

[2018] FWC 105

[2018] FWC 105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leigh Priest
v
Albury Blue Logistics
(U2017/10946)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 JANUARY 2018

Application for an unfair dismissal remedy – whether rejection of conciliated settlement agreement within cooling off period – no concluded settlement.

[1] On 11 October 2017, Mr Leigh Priest made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application was referred to conciliation on Thursday 2 November 2017. At conciliation, both Mr Priest and Albury Blue Logistics (ABL) were self-represented. In such circumstances, the Fair Work Commission practice is to offer the 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. This was confirmed in correspondence the conciliator sent to them on 2 November 2017, after the conciliation, which stated:

“I confirm that you reached a settlement agreement and I attach terms of settlement. 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 Wednesday 7 November 2017 (sic) I will assume the matter is resolved in the terms attached 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 Friday 3 November 2017 at 3:19pm, Mr Priest emailed the conciliator and stated the following in relation to the settlement agreement reached:

“This is not a reasonable outcome as it is only for the entitlements which legally need to be paid to me. Pending a further offer or negotiation I would like to proceed to the commission.”

[5] Subsequently, the Fair Work Commission (Commission) file records the conciliator emailing Mr Priest in reply at 3:38pm on the same day, confirming receipt of his email and advising that an unsuccessful attempt had been made to contact him via telephone. This email also requested that Mr Priest return the conciliator’s telephone call in order to discuss “what ‘further offer’ [he] may be asking the Respondent to make”. The conciliator then advised Mr Priest she would be available until 4:45pm that day but would otherwise not be available to be contacted again until Thursday 9 November 2017.

[6] As ABL was not initially copied in on the correspondence from Mr Priest, it was forwarded this by the conciliator at 4:15pm on 3 November 2017. This email also copied in Mr Priest and in it, the conciliator advised ABL that she had attempted to telephone Mr Priest to clarify his correspondence and would advise if she heard back from him that day. Finally, the conciliator referred to the correspondence sent on 2 November 2017 and that part of it explaining what would happen if one of the parties advised within the cooling off period that it did not want to proceed with the settlement. The conciliator also advised ABL that it might be possible the matter would be referred for hearing, stating “in which case I will contact the parties when I return to the office next Thursday and seek their instructions regarding future processing preferences”.

[7] ABL replied to the conciliator at 4:40pm on the following Wednesday, 8 November 2017. It included in its email a counter offer outlining revised settlement terms it had received from Mr Priest on Monday 6 November 2017. In this email ABL expressed that it was confused as to the situation due to its uncertainty over what Mr Priest intended to do next. ABL advised that it had signed the terms of settlement document sent to parties following conciliation and attached a copy.

[8] In a telephone conversation with the conciliator on Thursday 9 November 2017, ABL advised that it had replied to Mr Priest’s email and had requested clarification as to how he had calculated the amounts contained in the counter offer. ABL further advised it received a reduced counter offer from Mr Priest in reply but had not yet responded to it.

[9] The conciliator subsequently emailed Mr Priest at 1:59pm on Friday 10 November 2017, stating:

“Dear Leigh

I have tried unsuccessfully to call you today.

Can you please advise me whether you have agreed to the terms of settlement reached at conciliation on Thursday 2 November 2017 or whether you are going to withdraw from the agreement.

If you have decided to withdraw from the agreement I will automatically refer the matter on to arbitration.

If you have any queries please call me. Otherwise I await your written response.”

[10] Not having received a reply from Mr Priest to this earlier correspondence, at 4:25pm on 10 November 2017, the conciliator emailed again and stated:

“Dear Leigh

As you have:

• not contacted me since Friday 3 November 2017,

• not answered or returned any of my calls

• not responded to my emails (from earlier today or the email sent @4:15 pm on Friday 3 November) I will now close the file.

The cooling off period that applied to the agreement ended at COB Wednesday 8 November 2017.”

[11] ABL was copied in on this correspondence sent by the conciliator. Subsequently, at 8:35pm on Friday 10 November 2017, Mr Priest sent the following response to the conciliator:

“I have not agreed, and would like to proceed to arbitration.

I contacted the respondent and am awaiting their response

Thank you for your time…”

[12] On Monday 13 November 2017, the Commission made contact with Mr Priest via telephone. When Mr Priest expressed his intention to proceed to arbitration, he was asked to outline his reasons in writing so that his request could be considered.

[13] Mr Priest sent an email at 4:30pm that day which stated the following:

“I had expressed my wishes to proceed the day after my conciliation conference with Jill Gates. Who notified me she would be away until Thursday 9/11. I did not have any contact from Jill on this day and was under the impression as per her email after drafting the conciliation that I would have no further contact with her. During this time I was in contact with the respondent with a view to reach a resolution, and I requested they notify me if they were in agreement. We did not reach an agreement and as per my request to Jill and I thought the matter would just proceed further.

I had communication difficulties in response to speaking with Jill on Friday 10/11 when she had tried to contact me in the afternoon. I was involved with housework and did on occasions check my phone. I replied via email reconfirming that I would like to proceed to arbitration. As per her final email outlining her efforts to contact me and that my 'file' would be closed. This to me was a confirmation as per her email after the conciliation draft that she would no longer be involved. It was never my intention to have my 'case' closed, she must have somehow gathered a different understanding.”

[14] Consequently, on 20 November 2017 the Commission sent correspondence to the parties regarding Mr Priest’s request to proceed with his application. It advised that the matter had been referred to Commissioner Bissett, acting Panel Head – Termination of Employment, and stated:

“Our records show that this matter was settled at a conciliation conducted by the Commission on 2 November 2017. An email to that effect was provided to the parties on the same day. In light of this, the Commissioner is considering whether she should, of her own motion, dismiss Mr Priest’s application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.”

[15] This correspondence advised Mr Priest that prior to a decision being made as to whether his application would be dismissed, he was directed to file and serve evidence as to why his application should not be dismissed by close of business on Monday 4 December 2017.

Submissions of Mr Priest

[16] Mr Priest provided his submissions on 28 November 2017, outlining that at the conciliation on 2 November 2017 he was advised by the conciliator that a cooling off period would apply to any settlement reached by the parties. Mr Priest submitted this advice was confirmed in an email subsequently sent by the conciliator which advised the relevant cooling off period would expire at close of business on Wednesday 8 November 2017.

[17] Mr Priest contended that after he later realised that the amount offered by ABL to settle the matter was not reasonable, he notified the conciliator the following day that he did not agree to it. In this regard, Mr Priest sought to rely on the email he sent to the conciliator at 3:19pm (referred to at [4] above), asserting “I was clear in my communication that I was not happy with the settlement and wanted to proceed to the next formal step”.

[18] Mr Priest further submitted that after sending this email to the conciliator, he did not receive an immediate reply but only an automated response from the Commission. Mr Priest contended he then received an email from the conciliator one week later on Friday 10 November 2017, asking whether he had agreed to the terms of settlement proposed at conciliation, or wished to withdraw from the agreement.

[19] Mr Priest said he sent an email in reply on 10 November 2017, in which he stated that he confirmed again that he did not agree. Mr Priest confirmed he wants his application to proceed to arbitration.

Submissions of ABL

[20] The Commission subsequently sent correspondence to ABL on 1 December 2017, directing it to file and serve submissions and evidence by close of business on Friday 15 December 2017 as to why Mr Priest’s application should be dismissed because it has no reasonable prospects of success, on the basis that it had settled at conciliation.

[21] ABL provided its submissions on 15 December 2017, largely addressing its contention that Mr Priest had not been dismissed and remained an employee at the time of the conciliation. ABL asserted that it agreed to a proposed settlement with Mr Priest at the conciliation due to his indication that he wished to resign his employment with ABL. It was submitted by ABL that as part of the settlement negotiation, it agreed to Mr Priest’s request to receive four weeks’ pay in lieu of notice plus his accrued entitlements and supervisor allowance.

[22] ABL submitted that despite Mr Priest agreeing to this on the day of conciliation, a day later, he advised the conciliator he did not consider that the terms were acceptable and provided ABL with a counter offer via email on 6 November 2017, outlining revised settlement terms of “9 weeks, 14 weeks leave to include leave loading and 4 weeks in lieu of notice”.

[23] ABL confirmed it signed the terms of settlement document prepared by the Commission and these were sent via email to the conciliator on Wednesday 8 November 2017. ABL further submitted that it replied to Mr Priest’s email on 8 November 2017 and asked him to clarify its terms, in particular how he calculated the 9 week component. It added that Mr Priest had responded to this query via email on Thursday 9 November 2017 by stating:

“To justify/clarify, the terms are for settlement prior to proceeding further and outline the amounts payable subject to tax.

I am willing to negotiate on 9 weeks, down to 7 weeks. With a view towards resolution.

My resignation is a remedy regarding my claim for unfair dismissal ?

If we can not reach an agreement I will see you at arbitration (sic).”

[24] ABL submitted Mr Priest’s submissions filed 28 November 2017 did not provide “any solid evidence as to why [his] application should proceed” and consequently made a request that the matter be closed and not proceed further.

Reply from Mr Priest

[25] Following receipt of ABL’s submissions on 15 December 2017, Mr Priest sent an email to the Commission on 18 December 2017 in which he objected to assertions made by ABL. The basis of Mr Priest’s objection was that certain submissions of ABL concerned the merits of his application and did not address the issue of whether or not there was a binding settlement agreement reached by the parties.

[26] Rather, Mr Priest submitted that there appeared to be no dispute between the parties that a settlement agreement was reached at conciliation and that he notified the conciliator of his desire to not be bound by this agreement within the 3 business day cooling off period. In this regard, Mr Priest contended that he was entitled to rely upon the cooling off period in relation to the agreement reached at conciliation, as he had been advised by the conciliator on 2 November 2017 of its application.

Further submission of ABL

[27] ABL replied to the email from Mr Priest on 18 December 2017 at 10:49am and requested further time in which it could consider the additional submissions. The Commission emailed the parties and directed ABL to provide any submissions by close of business. ABL complied and submitted:

“Albury Blue Logistics participated in the conciliation process in good faith and negotiated a settlement at the request of the Applicant.

The question is when does the settlement terms become binding. Jill Gates felt the appropriate outcome was to close the matter based on information that was presented.

I have nothing further to add at this time.”

Consideration

[28] 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 on Wednesday 8 November 2017. Neither the Act nor the Fair Work Regulations 2009 prescribe a process for withdrawing from a conciliated settlement agreement during a cooling off period.

[29] The central issue for me to determine is whether a binding settlement agreement has been reached between Mr Priest and ABL.

[30] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in Pavlovic v Universal Music Australia Pty Limited 1in the following way: 

“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).”

[31] Whether there was a legally binding settlement reached between Mr Priest and ABL involves interpretation of the written correspondence within the 3 business day cooling off period, following the conciliation on 2 November 2017.

[32] In Singh v Sydney Trains 2, the Full Bench of the Commission outlined the relevant principles for offer and acceptance:

“[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. 

•  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.

•  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.

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

•  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”. Such a request for information does not revoke the offer and may constitute acceptance of the offer.” (references omitted)

[33] The email sent by Mr Priest to the conciliator on Friday 3 November 2017 was sent in response to the conciliator’s email attaching the settlement agreement. It was sent by him within the cooling off period and, as outlined above, it stated:

“This is not a reasonable outcome as it is only for the entitlements which legally need to be paid to me. Pending a further offer or negotiation I would like to proceed to the commission.”

[34] Mr Priest then sent an email to ABL on Monday 6 November 2017, again within the cooling off period, containing a counter offer of “9 weeks, 14 weeks leave to include leave loading and 4 weeks in lieu of notice”.

[35] It is clear those emails constituted a rejection of the settlement agreement reached at the conciliation on 2 November 2017. Mr Priest had considered the settlement agreement reached at the conciliation and he did not unequivocally accept it. Within the period allowed, he conveyed this and both the conciliator and ABL became aware of his position. In its submissions dated 15 December 2017, ABL appears to accept that Mr Priest advised the conciliator that the settlement terms were not acceptable on the day after the conciliation conference.

Conclusion

[36] I am satisfied Mr Priest did not accept the conciliated settlement agreement within the three business day cooling off period made available to the parties and this was communicated to the conciliator and ABL. Therefore, I am not satisfied there are binding terms of settlement and I decline to dismiss Mr Priest’s unfair dismissal application pursuant to s.587 of the Act.

[37] The application will now be referred for further directions so that its merits can be heard and determined. In this regard, it is noted that ABL appears to have raised the jurisdictional objection that Mr Priest was not dismissed from his employment within the meaning of s.386 of the Act. If this jurisdictional objection is maintained by ABL, it can be pressed at the hearing of the merits of the application and the directions will need to accommodate this.

DEPUTY PRESIDENT

 1 [2015] NSWCA 313 at [15].

 2   [2017] FWCFB 4562.

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