Mades Efemo v SouthLink Pty Ltd

[2019] FWC 3370

[2019] FWC 3370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mades Efemo
v
SouthLink Pty Ltd
(U2019/689)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MAY 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).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Efemo stated that his employment had been terminated by Southlink Pty Ltd (Southlink). Mr Efemo said that he was notified of his dismissal on 20 December 2018, but was unsure when his dismissal took effect because he remained rostered to work on 28 and 29 December 2018 until he was removed from these rosters on 27 December 2018.

[3] Either way, Mr Efemo did not make his application within 21 calendar days of his dismissal taking effect, and his reason for the delay was set out as follows:

“TUESDAY 18/12/2018: AFTER MY SHIFT, COORDINATOR SHANE GAVE ME AN ENVELOPE. IT HAD A ‘NOTIFICATION OF WORK PERFORMANCE HEARING’ LETTER DATED 13TH DECEMBER 2018 FROM NEIL.

WEDNESDAY 19/12/2018: NEIL PHONED ME TO SAY THAT MY SHIFT TOMORROW THURSDAY 20/12/2018 HAD BEEN COVERED SO I SHOULD COME SEE HIM AT 10AM.

THURSDAY 20/12/2018: I ARRIVED BEFORE 10AM BUT MY SUPPORT PERSON, BUOL, WAS IN NEED OF A LITTLE DIRECTIONAL HELP. I INFORMED CUSTOMER SERVICE PERSNONEL, JR, ABOUT IT. NEIL AND I EVEN EXCHANGED ‘HI’. BUT WHEN I WAS IN THE CAR PARK WALKING TOWARDS BUOL, NEIL WAS SHOUTING BEHIND ME ‘HEY WHERE ARE YOU GOING?’ I TOLD HIM THAT MY SUPPORT PERSON WAS A BIT LOST. HE SAID THAT ‘I THOUGHT YOU WERE WALKING AWAY.’ THEN HE ASKED ME ‘WHY DO YOU NEED A SUPPORT PERSON?’ WHEN THE FOUR OF US WERE SEATED, NEIL SAID ‘IT’S NOT WORKING.’

I INFORMED PETER SCRAGG, MY FIRST SUPPORT PERSON, WHO EMAILED A LETTER TO NEIL AFTER WHICH HE WAS ON LEAVE DUE TO THE HOLIDAYS UNTIL MONDAY 14/01/2019.”

[4] In responding to Mr Efemo’s contentions that his dismissal was unfair in the Form F3 – Employer Response to Unfair Dismissal Application (Form F3), Southlink outlined its position that:

•  The decision not to continue with Mr Efemo’s employment was made due to numerous performance issues throughout his 11 months of employment;

•  Mr Efemo had been counselled or performance managed multiple times for various reasons during his employment;

•  The application was lodged more than 21 days after Mr Efemo’s employment was terminated on 20 December 2018; and

•  Mr Efemo was a casual employee and so was not covered by Division 11 of the National Employment Standards (Notice of termination and redundancy pay).

Conciliation

[5] On 1 February 2019, a Notice of Listing was sent to the parties scheduling the matter for a conciliation on 25 February 2019.

[6] 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.

[7] At the telephone conciliation before a Commission conciliator on 25 February 2019, the parties appeared to reach a settlement agreement. Correspondence the conciliator sent to the parties at the conclusion of the conciliation stated:

“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.”

[8] As stated in this correspondence, the Terms of Settlement were attached.

[9] On the following day on 26 February 2019, Mr Efemo telephoned the Commission wishing to speak to the Commission conciliator about proceeding to hearing. The Commission advised him to send an email to the Commission conciliator, which Mr Efemo did later that day, saying:

“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.”

[10] Later the same day, the Commission conciliator emailed the parties in response to Mr Efemo’s correspondence and advised:

“As previous explained the matter no. u2019/689 was resolved through a settlement agreement reached in conciliation.”

[11] On 27 February 2019, 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.

[12] On 13 March 2019, the Commission received correspondence from Mr Efemo’s legal representative advising that it no longer acted for him.

[13] On 15 March 2019, Mr Efemo telephoned the Commission and was advised to send an email requesting that his matter be referred to arbitration.

[14] On 18 March 2019, Mr Efemo emailed correspondence to the Commission which said:

“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.”

[15] 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.”

[16] 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

[17] 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

[18] On 3 April 2019, Southlink emailed its material in response to Mr Efemo’s application.

[19] 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. Southlink submitted that following the conclusion of the conciliation, the Commission conciliator sent the parties the Terms of Settlement for signing.

[20] 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. Southlink submitted that it also sent this email to the Commission conciliator, who replied on 13 March 2019 and acknowledged that an agreement was reached between the parties, suggesting that Southlink continue to communicate with Mr Efemo and/or his legal representative. Southlink further submitted that on the same day, it received an email from Mr Tulic advising that K + K Legal was no longer acting for Mr Efemo.

[21] 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

[22] On 17 April 2019, Mr Efemo filed material in response to the submissions of Southlink filed on 3 April 2019.

[23] Mr Efemo stated in his material:

“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…”

[24] Mr Efemo further submitted that the “same dismissive approach” of Southlink enabled other staff to engage in bullying and harassment against him. It was indicated in Mr Efemo’s material that he would file a summarised chronology of the “kinds of maltreatments” he encountered during his employment. No such chronology has since been received from Mr Efemo.

[25] Lastly, Mr Efemo submitted that at the conciliation on 25 February 2019, Southlink contended that Mr Efemo’s employment had been terminated due to redundancy. Mr Efemo said that there were two reasons this was untrue:

•  Mr Efemo said he was invited by the manager on 19 December 2018 to attend an interview for a bus driver position. Mr Efemo drew attention to the fact that the invitation was made was one day after he received the letter dated 13 December 2018 titled “NOTIFICATION OF WORK PERFORMANCE HEARING”; and

•  Mr Efemo attached a copy of an online job advertisement for a bus driver, posted by Southlink on Job Active. Mr Efemo submitted that the advertisement demonstrated that Southlink was seeking more bus drivers.

Consideration

[26] 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.

[27] 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.” 1

[28] There are three matters in particular that persuade me that a binding settlement was reached during the conciliation on 25 February 2019.

[29] Firstly, the email correspondence from the Commission conciliator on 25 and 26 February 2019 was unequivocal in stating that a settlement had been achieved, and the terms of settlement drafted by her were not said to be subject to any conditions.

[30] Secondly, Mr Efemo was legally represented at the conciliation on 25 February 2019 and as such, no cooling off period was offered or applicable. This leads me to conclude that the terms of settlement reflect what was agreed at the conciliation.

[31] Lastly, based on the material before me, 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. While Mr Efemo has seemingly had a change of heart after the conclusion of the conciliation, there is no evidence before me that at the time of the agreement being reached, he did not intend to be bound by its terms.

[32] I have considered what Mr Efemo said in his reply material filed on 17 April 2019. This material is largely directed towards prosecuting the merits of his application. Mr Efemo has not otherwise provided any evidence to support his contention that no binding settlement agreement was reached at the conciliation on 25 February 2019 beyond his assertion to this effect.

[33] I am persuaded by the nature of the correspondence of the Commission conciliator on 25 February 2019 and the accompanying Terms of Settlement, and I prefer Southlink’s version of events, so am therefore satisfied that Mr Efemo and Southlink reached agreement at the conciliation 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 in either case, that there was a binding contract.

[34] In Australia Postal Corporation v Gorman, 2 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.3

[35] 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.” 4

[36] 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.

[37] 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.”

[38] As I have found that the parties reached agreement at the conciliation 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.

[39] 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

Printed by authority of the Commonwealth Government Printer

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 1   Masters v Cameron [1954] 91 CLR 353.at 360.

 2 [2011] FCA 975.

 3 Ibid at [31].

 4 Ibid at [33].