Mades Efemo v SouthLink Pty Ltd
[2019] FWC 5749
•19 AUGUST 2019
| [2019] FWC 5749 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mades Efemo
v
SouthLink Pty Ltd
(U2019/689)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 19 AUGUST 2019 |
Application for an unfair dismissal remedy.
[1] On 23 January 2019, Mr Mades Efemo made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Efemo did not make his application within 21 calendar days of his dismissal taking effect.
[2] On 1 February 2019, a Notice of Listing was sent to the Mr Efemo and SouthLink Pty Ltd (Southlink) scheduling the matter for a conciliation on 25 February 2019. Evidently, both parties agreed to participate.
[3] On 24 February 2019, the Commission received a Form F53 – Notice of representative commencing to act notifying that K + K Legal was commencing to act on behalf of Mr Efemo.
[4] In attendance at the telephone conciliation before the Commission conciliator on 25 February 2019, were Mr Efemo and his lawyer (Mr Andrew Tulic), together with Mr Daryll Conlon and Mr Neil Henderson from Southlink. The parties appeared to reach a settlement agreement.
[5] Correspondence the Commission conciliator sent to the parties shortly after the conclusion of the conciliation included the following:
“Thank you for your participation in today’s conciliation in the above matter. I confirm that you reached a settlement agreement and I attach terms of settlement.
As this is an agreement reached between the parties, you must send your signed terms to the other party…
This concludes my involvement in the process. If any queries arise about implementing the terms of settlement, please contact the other party directly.”
[6] As stated in this correspondence, the Terms of Settlement were attached.
[7] A Commission file note records that at 9.26am on the following day, 26 February 2019, Mr Efemo telephoned the Commission wishing to speak to the Commission conciliator about proceeding to hearing. He was advised him to send an email to the Commission conciliator. Mr Efemo sent an email to the Commission conciliator at 1.36 pm on 26 February 2019. It attached a letter dated 25 February 2019, stating:
“Thank you for your 25th February 2019 Letter.
I write to confirm to you that I have not yet reached a settlement and have duly informed Lawyer Andrew Tulic today 25th February 2019.
Thank you.”
[8] At 4.46pm on 26 February 2019, the Commission conciliator emailed the parties in response to Mr Efemo’s correspondence and advised:
“…As previously explained the matter no. u2019/689 was resolved through a settlement agreement reached in conciliation.
If either party is seeking further assistance from the Fair Work Commission they will need to do so by emailing: [email protected]
Please note from previous correspondence my involvement in the matter has concluded.”
[9] At 9.51am on 27 February 2019, Mr Henderson had emailed Mr Tulic a copy of the terms of Settlement signed on behalf of Southlink. Later that day at 2.43pm, Mr Efemo telephoned the Commission and indicated that he did not agree with the Terms of Settlement. Mr Efemo was advised that he or his legal representative could write to the Commission requesting that the matter be reopened.
[10] On 7 March 2019, Mr Henderson sent an email to Mr Tulic and the Commission conciliator, stating “SouthLink has not received the Terms of Settlement letter from the applicant Efemo v SouthLink Pty Ltd regarding the agreement/settlement as arranged Monday 25th February 2019.”
[11] At 10.15am on 13 March 2019, the Commission conciliator replied to Mr Henderson by email, acknowledging that an agreement was reached between the parties and suggesting that he communicate with Mr Efemo and/or Mr Tulic for further advice. Shortly after, at 10.48am, the Commission conciliator and Mr Henderson were sent email correspondence by Mr Tulic advising that K + K Legal no longer acted for Mr Efemo in relation to his unfair dismissal matter and requesting that all correspondence be directed to Mr Efemo.
[12] On 15 March 2019, Mr Efemo telephoned the Commission advising the settlement had fallen through. He was advised to send an email requesting that his matter be referred to arbitration.
[13] On 18 March 2019, Mr Efemo emailed correspondence dated 15 March 2019 to the Commission, stating:
“Today 15th March 2019 I phoned The Commission to enquire about the above case and was told that The Commission has closed it.
I informed that I had emailed the Conciliator and The Commission a letter stating that I had not agreed to a settlement on that day of the Conciliation 25th February 2019.
During the Conciliation the Company, represented by manager Neil Henderson and operations manager Daryll Conlon, mentioned some points that made me ask myself if I was not being wrongly accused for another operator’s mistake, a thing which had been experienced at least four times.
Also, the certain comments by the person who said he was Daryll was most surprising.
The Commission has asked that I send another email requesting that the matter be taken to Arbitration. Hence, this letter.
I inform The Commission that my lawyer is not currently available. He has been overseas since 12th February 2019. Today I was informed that he would be back in the country on 30th March 2019.”
[14] On 20 March 2019, the Commission emailed correspondence dated 19 March 2019 to Mr Efemo. This correspondence stated:
“We understand you wish to have your unfair dismissal application heard and determined. Our records show that this matter was settled at a conciliation conducted by the Commission on Monday, 25 February 2019 and correspondence to that effect was provided to the parties on Monday, 25 February 2019.
In light of this, the Deputy President is considering whether he should, of his own motion, dismiss Mades Efemo’s application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.
The Deputy President is considering this course of action having regard to the decision of the Full Bench of Fair Work Australia in Curtis v Darwin City Council [2012] FWAFB 8021. In that case, the Full Bench referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2001] FCA 975, which is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed. The parties should therefore review these decisions.
Prior to deciding whether he should dismiss this application, The Deputy President makes the following directions:
1. The Applicant (Mr Efemo) is to file and serve by 4pm on Tuesday 26 March 2019 submissions and evidence as to whether a binding settlement agreement was reached between the parties and whether the application should or should not be dismissed on the basis that it has no reasonable prospects of success.
2. The Respondent (Southlink Pty Ltd) is to file and serve by 4pm on Tuesday 2 April 2019 submissions and evidence as to whether a binding settlement agreement was reached between the parties and whether the application should or should not be dismissed on the basis that it has no reasonable prospects of success.”
[15] On 27 March 2019, at the request of Mr Efemo, amended directions were issued requiring Mr Efemo to file his material by 4:00pm on Tuesday, 2 April 2019.
Submissions of Mr Efemo
[16] On 2 April 2019, Mr Efemo sent email correspondence to the Commission attaching a one page letter addressed to me with the subject line, “SUBMISSIONS AND EVIDENCE THAT NO BINDING SETTLEMENT AGREEMENT HAS BEEN REACHED”. The letter stated as follows:
“I make this submission that I the Applicant have not reached any binding settlement agreement with the Respondent as per my letter to the Conciliator and The Commission.
Therefore, this application should not be dismissed on the basis that it has reasonable prospect of and grounds for success.”
Submissions of Southlink
[17] On 3 April 2019, Southlink emailed its material in response to Mr Efemo’s application.
[18] Southlink submitted that at the conciliation conference on 25 February 2019 before the Commission conciliator, Mr Efemo was legally represented by Mr Andrew Tulic of K + K Legal. It further said that the matter resolved through a settlement agreement and that following the conclusion of the conciliation, the Commission conciliator sent the parties the Terms of Settlement for signing.
[19] Following this, Southlink said that it signed the Terms of Settlement and emailed a copy to Mr Efemo and his legal representative on 27 February 2019. Southlink said it sent a follow up email to Mr Tulic on 7 March 2019, which it also sent to the Commission conciliator. Southlink said that in a reply dated 13 March 2019, the Commission conciliator acknowledged that an agreement was reached between the parties and suggested that Southlink continue to communicate with Mr Efemo and/or his legal representative. Southlink further advised that on the same day, it received an email from Mr Tulic advising that K + K Legal was no longer acting for Mr Efemo.
[20] Lastly, Southlink submitted that it had acted in good faith throughout the conciliation process and believed that the matter was resolved on 25 February 2019. It further said it was “somewhat confused” by Mr Efemo’s actions since then.
Reply submissions of Mr Efemo
[21] On 17 April 2019, Mr Efemo filed material in response to the submissions of Southlink filed on 3 April 2019.
[22] Amongst the various statements in this material, Mr Efemo stated in in relation to the question of whether the matter was settled at a conciliation conducted by the Commission on 25 February 2019:
“Upon reading the Respondent’s 3rd April 2019 Letter, the sort of approach and attitude that I have experienced throughout 2018 is once again being exhibited here.
The same conciliator… who conducted the Monday 25 February 2019 Conciliation is the same conciliator who stated in her email to the parties on Tuesday 26 February 2019 that ‘I have received from the Applicant the email below with an attachment (this is attached to this email).’
If the Respondent had not chosen to apparently dismiss or ignore the conciliator’s update, the Respondent will not have been ‘somewhat confused’ by now. This is no fault of the Applicant…”
First decision and subsequent appeal
[23] I proceeded to determine the matter on the basis of the written material before me. I was satisfied the parties reached agreement at the conciliation on 25 February 2019 and that the agreement was of the first or second type discussed in Masters v Cameron. 1 I was persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss Mr Efemo’s unfair dismissal application on the basis that it had no reasonable prospects of success.
[24] Mr Efemo appealed my Decision and Order. 2 On Appeal, the Full Bench determined that I had failed to comply with s.397 of the Act and this was an error that warranted correction. The Full Bench upheld Mr Efemo’s appeal, quashed my Decision and Order dismissing his unfair dismissal application3 and remitted the matter to me to conduct a conference or hold hearing, in order to determine the dispute as to whether or not a settlement agreement had in fact been reached.
[25] On 7 August 2019, I caused an email to be sent to the parties in which I requested that Southlink confirm whether or not it maintains that the matter was resolved by a binding settlement agreement at the Conciliation on 25 February 2019. Southlink sent a reply email on the same day which repeated the previous written submissions it had filed and served on 3 April 2019, together with the statement:
“To date we have not received a copy of the Terms of Settlement letter signed by Mr Efemo and a witness, Mr Efemo has not complied with the terms in the Terms of Settlement, and SouthLink have been unable to finalise the settlement.”
[26] Therefore, on 8 August 2019, a Notice of Listing was sent to the nominated postal and email addresses of the parties listing the matter for Jurisdiction Conference/Hearing at 9.30am (ACST)/10.00am (AEST) on 16 August 2019. I also made an Order requiring Mr Tulic to attend at this time.
[27] On 15 August 2019, Mr Efemo submitted a “Summarised Chronology and relevant attachments.” These documents did not address the question of whether or not a settlement agreement had in fact been reached on 25 February 2019. They comprised Mr Efemo’s account of what he described as “bullying, discrimination, harassment and unreasonable behaviour experienced at Southlink Pty Ltd throughout 2018.”
[28] Also on 15 August 2019, Mr Efemo requested that he be granted permission to participate by telephone. I initially declined this request. However, shortly before the Conference/Hearing was due to commence on 16 August 2019, Mr Efemo telephoned my chambers claiming he was confused about the starting time and advising that he would be not be able to attend the Commission premises in Adelaide due to illness. Rather than delay the matter further, I granted Mr Efemo permission to attend by telephone and he made no objection to participating in this fashion.
Determinative Conference on 16 August 2019
[29] In addition to Mr Efemo attending by telephone, Mr Conlon and Mr Henderson were present on behalf of Southlink and Mr Tulic complied with the Order requiring his attendance. At the outset, I consulted with the parties and determined it would be most appropriate to hold a Determinative Conference. I considered this would be the most effective and efficient way to resolve the dispute as to whether or not a settlement agreement had in fact been reached on 25 February 2019.
[30] Mr Efemo confirmed he was present during all the discussions that took place during the conciliation conference and that he heard everything that was discussed. He said that he could not speak when he wanted to because he had been instructed to only talk to Mr Tulic and nor could he voice any disagreement to what was being done. Mr Efemo said he had previously met with another colleague of Mr Tulic and had only met Mr Tulic on the morning of the conciliation conference. He said he did not know Mr Tulic was going to represent him before then. Mr Efemo said he did not agree to what Southlink was putting forward at the conciliation conference and that he refused the offer.
[31] Mr Conlon said Mr Efemo was present at the conciliation and that Mr Tulic had presented Mr Efemo’s version of what had happened. Mr Conlon said the company had responded and then some offers to settle the matter without it needing to go further, passed between the parties. Mr Conlon said an agreement was reached at the end of that conciliation call without conditions attached. He said no one said they wanted to go away and think about anything and the conciliator said that she would prepare a terms of settlement “letter” and then sent it through. Mr Conlon then referred to the subsequent correspondence that passed between the parties over the ensuing days and weeks. Mr Conlon said that Southlink believed that when the conciliation conference call had completed, an agreement had been reached without a cooling off period or the need for someone to go off to think about it. Mr Conlon maintains a binding agreement was reached at that time.
[32] Mr Henderson said his recollection was that it was very clear there was a settlement arranged via the conciliator at the end of the telephone call and through the paperwork received after. Mr Henderson said that on the following day he sent “the information” off to be signed by the other party.
[33] Mr Tulic said:
• Mr Efemo was present with him in the room during the conciliation conference;
• offers were exchanged during the course of the conciliation conference;
• the conciliation conference concluded on the basis that there was an agreement to the terms that were put; and
• the parties were then to execute the terms of the settlement that were provided by the Commission.
[34] Mt Tulic agreed all the terms were agreed, they were to be recorded in the settlement agreement prepared by the conciliator and there was no cooling off period. Mr Tulic said the settlement agreement documents prepared by the conciliator and sent on 25 February 2019 reflected what had been agreed at the conciliation.
[35] It was evident that Mr Efemo believes that Southlink raised the issue of redundancy and this was, for him, a barrier to settlement and the reason why he did not agree to it. Mr Conlon says he never mentioned redundancy and Mr Henderson said there was no redundancy and he does not recall discussions having involved redundancy. For his part, Mr Tulic says there was mention of a ‘genuine redundancy’ as part of the issues raised by Southlink at the commencement of the conciliation. I do not consider finding one way or the other on this point is determinative in this matter because Mr Tulic ultimately said Mr Efemo gave his agreement to the terms which were agreed between the parties.
[36] In response to this evidence of Mr Tulic, Mr Efemo says he could not talk until after the conciliation call was over so his understanding was that he would discuss matters with Mr Tulic and then the case would proceed further. Mr Efemo also said that if Mr Tulic was saying that he agreed to the settlement, Mr Tulic will also remember that he kept bringing up the redundancy issue. Mr Efemo said he did not agree to any binding settlement when he understood what everything meant and that he informed Mr Tulic later that same day. He said when he understood that settlement would mean there has not been an unfair dismissal, he refused the offer.
Consideration
[37] As I have previously outlined, the issue for me to determine in deciding whether this matter should be reopened is whether a binding settlement agreement has been reached between Mr Efemo and Southlink.
[38] In Masters v Cameron, 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 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. 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.” 4
[39] The evidence at the Determinative Conference on 16 August 2019 persuades me that a binding settlement agreement was reached at the conciliation conference on 25 February 2019. I am not persuaded that there was any intention of the parties not to make a concluded bargain, unless and until they executed a formal contract. I prefer the evidence of Mr Tulic, Mr Conlon and Mr Henderson that settlement was agreed at the end of the conciliation and there was no cooling off period. The contemporaneous correspondence sent to the parties by the conciliator shortly afterwards unequivocally confirms this and the terms of settlement drafted by her were not said to be subject to any conditions.
[40] Mr Efemo’s evidence is that when he understood what everything meant, he informed Mr Tulic that he did not agree to the settlement. However, the weight of evidence is against him. Mr Tulic’s evidence was that, as far as he was concerned, Mr Efemo agreed to the terms at the conciliation. This is the impression that Mr Conlon and Mr Henderson had too. The view of the Commission conciliator, evidenced by her contemporaneous correspondence is consistent with the evidence of Mr Tulic, Mr Conlon and Mr Henderson. Mr Efemo’s evidence that he told Mr Tulic “later that same day” that he did not agree to the settlement therefore suggests to me that he changed his mind after the conciliation conference. His letter dated 25 February 2019 is consistent with this, noting it was not sent to the Commission conciliator until the next day. The subsequent email sent by the Commission conciliator later on 26 February 2019 displayed no doubt in her mind as to the state of things. It was again unequivocal in stating that a settlement had been achieved during the conciliation conference.
[41] I have considered what Mr Efemo said in his reply material filed on 17 April 2019 and in his subsequent written material submitted on 15 August 2019. This material is almost wholly directed to his prosecution of the merits of his unfair dismissal application. Mr Efemo has not provided any documentary evidence to support his contention that no binding settlement agreement was reached at the conciliation on 25 February 2019, beyond his statements to this effect in his correspondence.
[42] Having been persuaded by the nature of the correspondence of the Commission conciliator sent on 25 February 2019 and 26 February 2019 and the accompanying Terms of Settlement documents, and preferring the version of events given by Mr Tulic, Mr Henderson and Mr Conlon, I am satisfied that Mr Efemo and Southlink reached agreement at the conciliation conference on 25 February 2019 and that the settlement position was reflected in the Terms of Settlement drafted by the Commission conciliator and provided to the parties on the same day. I am satisfied the agreement fell within either the first or second category described in Masters v Cameron and that in either case, there was a binding contract.
[43] In Australia Postal Corporation v Gorman, 5 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.6
[44] 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.” 7
[45] 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 it has no reasonable prospects of success.
[46] 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.”
[47] As I have found that the parties reached agreement at the conciliation conference on 25 February 2019 and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, 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 Efemo’s claim that he was unfairly dismissed.
[48] For the reasons outlined above, I find that Mr Efemo 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
Appearances:
Mr Mades Efemo, on his own behalf.
Mr Daryll Conlon and Mr Neil Henderson on behalf of SouthLink Pty Ltd.
Hearing details:
2019.
Melbourne (VC to Adelaide):
16 August.
Printed by authority of the Commonwealth Government Printer
<PR711439>
1 [1954] 91 CLR 353
2 [2019] FWC 3370 and PR708345
3 [2019] FWCFB 5291
4 Masters v Cameron [1954] 91 CLR 353.at 360.
5 [2011] FCA 975.
6 Ibid at [31].
7 Ibid at [33].
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