Marie Hebbard v Murdoch Retirement Services Pty Ltd

[2014] FWC 9025

[2014] FWC 9025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marie Hebbard
v
Murdoch Retirement Services Pty Ltd
(U2014/7928)

DEPUTY PRESIDENT MCCARTHY PERTH, 18 DECEMBER 2014

Application for relief from unfair dismissal.

Background

[1] This matter concerns an application to dismiss (the application to dismiss) an unfair dismissal application (the substantive application). The substantive application was lodged by Ms Marie Hebbard (Ms Hebbard). Ms Hebbard lodged the substantive application claiming that she was unfairly dismissed from her employment with Murdoch Retirement Services Pty Ltd (MRS). The St Ives Group Pty Ltd (St Ives) is the agent for MRS. Ms Hebbard was employed by MRS as a receptionist from the 21 September 2009.

[2] The application to dismiss is grounded on three bases:

● Ms Hebbard was not dismissed within the meaning of s.386(1) of the Fair Work Act 2009 (Cth) (the FW Act); or

● the substantive application is frivolous or vexatious and lacks reasonable prospects of success, as a binding settlement agreement was reached between the parties on 9 May 2014. The substantive application should therefore be dismissed in accordance with s.587 of the FW Act; or

● Ms Hebbard’s substantive application was not brought within the 21 day time limit as required by s.394(2)(a) of the FW Act.

[3] Ms Robinson of Allion Legal was granted permission to represent MRS and Mr King of Regis Industrial Relations was granted permission to represent Ms Hebbard.

[4] As there were facts in dispute I conducted hearings on 20 and 26 November 2014.

[5] The first issue in contention was whether an agreement was reached that resulted in the voluntary ending of Ms Hebbard’s employment. If that was the case then MRS argue that the employment ended by a voluntary act and was not as a result of a termination of employment at the initiative of MRS.
[6] An alternative to that contention argued by MRS was that even if Ms Hebbard’s employment did not end on 16 May 2014 that it ended on 23 May 2014 as a result of an agreement reached in which case the substantive application would have been lodged outside the time allowed.

[7] Central to these considerations is the involvement of Mr Michael Fitz Gerald of Fitz Gerald Strategies. Firstly, there is a question of whether Mr Fitz Gerald entered in an agreement with Allion Legal that involved the ending of Ms Hebbard’s employment with St Ives, and secondly the authority Mr Fitz Gerald had to represent Ms Hebbard in negotiations regarding Ms Hebbard’s employment. Thirdly, if Mr Fitz Gerald did enter into an agreement with Allion Legal involving the ending of Ms Hebbard’s employment what was the extent of any authority. Finally, the further question arises as to the effect of any agreement if one was made.

Was an agreement reached?

[8] On the 2 May 2014 at 4:00pm, or thereabouts, Ms Hebbard had a meeting in her office at St Ives Murdoch with Mr Bruce Ross-Adams, Executive Manager People for St Ives. St Ives is responsible for managing, MRS and has a contract to that effect.

[9] During that meeting Ms Hebbard expressed that her communications with Mr Robins, the acting Village Manager, were strained and she was frustrated with the relationship. Mr Ross-Adams advised Ms Hebbard that one option available to her was a package that would include an ex-gratia payment of $10,000 and that she would effectively resign and the ending of the employment relationship would be characterised as a mutual separation.

[10] Mr Ross-Adams evidenced that he stated at that meeting that:

“if she [Ms Hebbard] was not happy with her job, we [St Ives] could explore an alternative of a mutual agreement to end the working relationship. I told her I would try to make this option palatable by offering an ex gratia sum, possibly $10,000, to assist with her mortgage and holiday. I indicated that if this was an option she wished to explore I would assist her as far as possible with a transition to other employment or from the workforce. I reiterated that this was an option only, and it was entirely up to Ms Hebbard if she wished to explore this avenue.”

[11] He stated further that “[t]he discussion was an informal one and the option of agreeing a separation was clearly an option available if Ms Hebbard wished to avail herself of this” and that he had “no doubt that Ms Hebbard understood the offer I was making and the conversation we had” and that he “was left with the impression that Ms Hebbard would think about the mutual separation offer”.

[12] On 6 May 2014 Mr Ross-Adams “received correspondence from Mike Fitz Gerald of Fitz Gerald Strategies advising he acted for Ms Hebbard and that Ms Hebbard planned to take action against St Ives. The letter made a number of allegations, including that St Ives had taken adverse action against Ms Hebbard”. It is not necessary that I canvass the allegations in the letter other than to note that they are disputed.

[13] Mr Ross-Adams says he then conferred with Allion Legal, the legal advisers for St Ives, and instructed them to respond to the 6 May 2014 letter from Mr Fitz Gerald.

[14] A Statutory Declaration of Ms Sarah Jane Kemp, a Solicitor at Allion Legal, was tendered. Ms Kemp was available for cross-examination but Ms Hebbard’s representation stated that he did wish to cross-examine.

[15] Ms Kemp stated that on 6 May 2014 Allion Legal received an email from Mr Ross-Adams attaching a copy of a letter received by St Ives from Mr Fitz Gerald (the 6 May Fitz Gerald Letter). Ms Kemp states that Allion Legal was instructed to respond to Mr Fitz Gerald on behalf of St Ives. Ms Kemp sent a response by email on 6 May 2014 attaching a letter signed by Ms Kathryn Melissa Reid (the 6 May Allion Legal letter), a Principal at Allion Legal. The 6 May Allion Legal letter states that the version of events in the 6 May Fitz Gerald letter were disputed and that the adverse action claims were denied.

[16] On 7 May 2014, Ms Kemp states that she received an email from Mr Fitz Gerald which stated:

“In the interests of settling this matter on a ‘without prejudice’ basis, are you able to confirm that your client’s offer of a $10,000 severance payment to my client is still on offer?”

[17] Ms Kemp says she forwarded the email to Ms Reid and discussed it with her.

[18] A Statutory Declaration of Ms Reid, Principal at Allion Legal, was tendered. Ms Reid was available for cross-examination but Ms Hebbard’s representation stated that he did wish to cross-examine.

[19] Ms Reid stated that on 7 May 2014 she telephoned Mr Fitz Gerald and advised him of the offer of settlement she had been instructed to convey. She stated that Mr Fitz Gerald stated that he believed Ms Hebbard would accept the offer. Ms Reid then emailed Mr Fitz Gerald the terms of the offer. The email explained that the offer was that which had been discussed with him. The detailed terms were outlined in the email as follows:

“ An ex gratia payment of $10,000;

• Payment of all accrued entitlements;



• The option for Ms Hebbard to characterise the ending of employment as either a mutual separation or a resignation;



• The settlement to be reflected in a deed of settlement on the usual terms;



• The confidentiality term of the deed will require repayment of the ex gratia payment if confidentiality is breached; and



• The provision of a statement of service and a contact person for the giving of verbal references (confined to matters in the statement of service).”

[20] Ms Kemp stated that Ms Reid informed her that after she received instructions from Mr Adams-Ross she telephoned Mr Fitz Gerald and conveyed to him an offer of a settlement in accordance with her instructions.

[21] Ms Kemp stated that on 7 May 2014 she received a telephone call from Mr Fitz Gerald advising that Ms Hebbard would accept St Ives’ offer of settlement on the following conditions:

“ St Ives characterises the ending of Ms Hebbard’s employment as a resignation; and

• Ms Hebbard’s resignation is effective 16 May 2014.”

[22] During the telephone conversation Ms Kemp stated that Mr Fitz Gerald informed her that Ms Hebbard was absent from work and had a certificate declaring her unfit until 12 May 2014. Mr Fitz Gerald inquired whether St Ives would agree to pay Ms Hebbard personal leave up to 16 May 2014.Ms Kemp says she advised Mr Fitz Gerald that she would respond to him once she had received further instructions from St Ives on the proposal.

[23] On 8 May 2014 Ms Kemp contacted Mr Ross-Adams and discussed the proposal. Mr Ross-Adams advised her that the end of Ms Hebbard’s employment would be treated as a resignation but effective from the 8 May 2014. Ms Kemp then phoned Mr Fitz Gerald on his mobile and left a message for him to contact her.

[24] Mr Fitz Gerald later that day (at approximately 6.45pm) phoned Ms Kemp. Ms Kemp informed Mr Fitz Gerald that St Ives:

“was prepared to characterise the ending of Ms Hebbard’s employment as a resignation, however would like to make the resignation effective 8 May 2014 and pay the remainder of Ms Hebbard’s salary as extra notice.”

[25] Ms Kemp in her statement says that during that phone call:

“Mr Fitz Gerald advised me that his instructions were that Ms Hebbard would accept St Ives’ offer of settlement on the basis Ms Hebbard was paid her usual salary as an additional one weeks’ notice until the commencement of her pre-booked annual leave for a period of 4 weeks’ commencing on 16 May 2014. I recall Mr Fitz Gerald stated that his client had suggested an effective resignation date of 16 May 2014, however had instructed him that the resignation date was not important provided she was paid up until 16 May 2014. Mr Fitz Gerald then said words to the effect of ‘it is all about the money’. Mr Fitz Gerald suggested 9 May 2014 as Ms Hebbard’s effective resignation date to incorporate the additional one weeks’ notice.”

[26] A handwritten note made during the conversation with Mr Fitz Gerald by Ms Kemp was provided and included in that note was the notation “Mike’s [Mr Fitz Gerald’s] instructions - to say yes to offer - of settlement”.

[27] Ms Kemp informed Mr Fitz Gerald that she would seek instructions confirming the terms of settlement and email him confirmation. On 9 May 2014 she discussed it with Ms Reid and telephoned Mr Ross-Adams and confirmed his instructions.

[28] On 9 May 2014, Ms Kemp telephoned Mr Ross-Adams. Ms Kemp stated that during that telephone conversation:

“Mr Ross-Adams confirmed St Ives’ agreement to the ending of Ms Hebbard’s employment being characterised as a resignation effective 9 May 2014, and payment of an additional weeks’ notice. Mr Ross-Adams instructed me to proceed to confirm these agreed terms of settlement with Mr Fitz Gerald”.

[29] On 9 May (at 8.44am) Ms Kemp sent an email to Mr Fitz Gerald confirming the agreed terms of settlement. The full text of the email was as follows:

“Without Prejudice Save as to Costs

Dear Mike

Further to our telephone conversation yesterday evening, I confirm the agreed terms of settlement of all matters relating to your client’s employment with St Ives are as follows:

- Ex gratia payment of $10,000
- Payment of accrued entitlements
- Payment of 5 weeks’ notice (consisting of 4 weeks’ notice entitlement and 1 week additional notice)
- Characterisation of ending of your client’s employment as a resignation, effective today, 9 May 2014
- The settlement to be reflected in a deed prepared by us on the usual terms
- The confidentiality term in the deed will require repayment of the ex gratia payment if confidentiality is breached
- Our client will provide a statement of service and a contact person for the giving of verbal references (confined to the matters in the statement).

We will now prepare the deed of settlement to reflect the above terms and provide this to you shortly for your client’s execution.”

[30] Mr Fitz Gerald responded with two emails that same morning email (at 9.14am and at 9.38am). The 9.14am email stated:

“Thanks Sarah.”

The 9.38am email stated:

“Hi Sarah

Can you please arrange for your client to add a detailed statement of the payments to accompany the Deed so that Mrs Hebbard is clear on what she is receiving for what? Thank you.”

[31] The evidence of both Ms Reid and Ms Kemp is that at this juncture they considered an agreement had been reached which involved the ending of Ms Hebbard’s employment.

[32] There was no cross-examination of either Ms Reid or Ms Kemp. Both were available for cross-examination.

[33] Mr Fitz Gerald when cross-examined about the phone discussions with Ms Kemp at 6.45pm on 8 May 2014 claimed that Ms Kemp’s notes of the discussion were “a misrepresentation of what took place” and “[i]t’s either a misrepresentation or a misunderstanding of what the conversation was.”

[34] Mr Fitz Gerald says that:

● he did not “say yes to offer of settlement”;
● he “certainly had no instructions to agree, and I [he] never advised Allion at any stage that I [he] agreed”;
● he never advised Allion at any stage that “I [he] agreed”;
● he “didn’t say Ms Hebberd would accept it” and that he “had written confirmation and verbal confirmation from Ms Hebbard that she wasn’t prepared to accept the deal. She wanted to continue in her employment”; and
● “at no stage did I [Mr Fitz Gerald] ever advise Allion Legal that Ms Hebbard had accepted the offer and would sign the deed” or that “she [Ms Hebbard] accepted the deal, or that she was going to accept it”.

[35] Despite those strong statements refuting the evidence of Ms Kemp regarding the discussion Mr Fitz Gerald also stated in his evidence that “I don’t recall that my instructions were to say yes to the offer and I don’t believe I said it”. A statement of that nature to me creates doubt about the accuracy of Mr Fitz Gerald’s account of the discussion.

[36] Mr Fitz Gerald also did not deny that he had said during the discussion that “[i]t’s all about the money” but described it as probably being “a throw-away line”.

[37] Nor does it appear that Mr Fitz Gerald did have “written confirmation and verbal confirmation from Ms Hebbard that she wasn’t prepared to accept the deal” when he held the discussions with Ms Kemp as the proposal had not been put to him. He appears to have only received those instructions in the 19 May 2014 response to his email of 17 May 2014.

[38] Mr Fitz Gerald stated that in the discussions with Ms Reid it appeared to him that Allion Legal “were assuming that a deal had been done” and that in the email of 9 May 2014 they were trying to put words into his mouth “where she [Ms Kemp] describes the terms as being agreed to when they weren’t”. He then stated “I [Mr Fitz Gerald] suggested that Ms Reid might put the terms of the settlement in the form of a deed”.

[39] Ms Kemp’s email on 9 May 2014 to Mr Fitz Gerald was clear and unambiguous. It stated “I confirm the agreed terms of settlement” and went on to detail what those terms were.

[40] When Mr Fitz Gerald received the email he responded with two separate emails. There was no mention in either of those emails that Ms Kemp’s email did not reflect the discussions that had been held or that he disputed that an agreement had been reached. There was no mention that the email was a misrepresentation or a misunderstanding as he later claimed.

[41] Indeed in Mr Fitz Gerald’s own words what he did was “[s]hook my head and wondered why there was such an aggressive persistence that this was already a done deal”. In retrospect Mr Fitz Gerald recognised that he “didn’t do anything really effectively, I must say I was remiss in that regard” and he “obviously didn’t give this the attention it deserved because I [he] was distracted in relation to the other matters that I [he] was handling at that time”. In short, as he admitted, he “did nothing”.

[42] Mr Fitz Gerald’s evidence was inconsistent and unconvincing on a number of fronts. With respect to his interactions with and instructions he received from Ms Hebbard. For example he stated that he “almost certainly had a couple of conversations on the phone” with Ms Hebbard between 7 May 2014 and 13 May 2014. However, when challenged because that evidence conflicted with that of Ms Hebbard his response was that “[m]aybe I’m relying on her conduct rather than the specific instructions on the phone”.

[43] Mr Fitz Gerald’s account of the communications and clarity of his instructions from Ms Hebbard was also inconsistent. For example he stated that Ms Hebbard “doesn’t leave you in any doubt about what her thoughts are and what her wishes are, and I was of - I was quite well instructed by her conduct and by the conversations and the emails that we had that she wasn’t signing that deed full stop”. Mr Fitz Gerald evidence that he received an email on 6 May 2014 at 6.58pm from Ms Hebbard which stated “[y]ou have to do what you think” 1. I would not consider an instruction that “[y]ou have to do what you think” would fit Mr Fitz Gerald’s description of Ms Hebbard and her instructions and nor do Ms Hebbard’s actions of not contacting Mr Fitz Gerald after 7 May 2014 despite several emails to her from Mr Fitz Gerald. Indeed his email on 17 May 2014 seems more indicative of a lack of clarity of instructions than a situation of being well instructed.

[44] Mr Fitz Gerald’s language about what he thought was occurring was imprecise perhaps dangerously so. For example he stated “I suggested that Ms Reid might put the terms of the settlement in the form of a deed, and I requested this so I could show it to Ms Hebbard what the terms of settlement would look like in a formal document with it all spelt out and she could weigh up exactly what the offer meant” (my emphasis). His description of the terms of the settlement are not conditioned in any way at all but he obviously considers them to be either a proposed terms of settlement or subject to approval. Anyone involved in negotiations with such expressions being verbalised would quite reasonably think he was referring to the drafting up of a deed to reflect an agreement that had been entered into.

[45] If it was a misunderstanding then he should have corrected it when he got the email on 9 May 2014. If he had instructions that Ms Hebbard wanted to continue her employment then it is peculiar that he would initiate the discussions at all regarding a severance payment if Ms Hebbard’s continued employment was not negotiable. Additionally it is strange that during his discussions with Ms Kemp he would state that “it’s all about the money”. That is not a throw-away line as Mr Fitz Gerald contended but rather a statement that indicated that if the amount of money offered was sufficient then a settlement involving the ending of Ms Hebbard’s employment would be possible.

[46] I prefer the evidence of Ms Kemp to that of Mr Fitz Gerald. Specifically I do not accept Mr Fitz Gerald’s account of the discussion on 8 May 2014. I find that an agreement was reached between Ms Kemp acting for St Ives and Mr Fitz Gerald. I also find that the agreement and its terms were confirmed in the email of Ms Kemp on 9 May 2014.

Did Mr Fitz Gerald have authority to represent Ms Hebbard?

[47] It is clear that Mr Fitz Gerald was engaged by Ms Hebbard to represent her. That much is not contentious. The terms of that engagement and the parameters of the authority given to Mr Fitz Gerald are clearly contentious issues but they are not matters that I must consider here. Rather my considerations involve whether Mr Fitz Gerald did represent Ms Hebbard in reaching an agreement involving the ending of her employment with St Ives and if representatives for St Ives had reasonable, if not strong grounds, to believe they were dealing with a representative of Ms Hebbard that had the authority to make commitments on her behalf.

[48] Whilst I accept that Ms Hebbard did not give Mr Fitz Gerald express instructions to discuss a settlement involving an end to her employment with St Ives I do not accept her further contention that there were no implied instructions. Indeed Ms Hebbard in her own evidence acknowledged that she countenanced the settlement and communicated with Mr Fitz Gerald about it in the full knowledge of what was being proposed and what was involved.

[49] If Ms Hebbard did not want those discussions to be undertaken by Mr Fitz Gerald she should have directed him at that time to cease the discussions and advise St Ives that he did not have authority to be representing her for discussions of that nature. She also would not have instructed him to “do what you think”.

[50] She also sought his advice about whether she should accept the offer and also sought time to consider it. Whilst she described the seeking of advice regarding whether she should accept the offer or not as “a broad enquiry”,and it may well have been exactly that, but that does not quarantine it from being the seeking of advice about something she says she gave no authority for Mr Fitz Gerald to be involved in. Indeed by seeking advice about the settlement it is arguable that Ms Hebbard was, in effect, giving new instructions even if she had given more confined instructions beforehand, and even if she did not realise that was what she was doing.

[51] Mr Fitz Gerald responded to Ms Hebbard’s request for an opinion. He emailed her about an hour after the opinion had been sought and recommended that she accept the offer. Ms Hebbard did not respond to Mr Fitz Gerald or provide him with any further instructions until 19 May 2014.

[52] If her instructions were so confined then she would not have become involved in the consideration of those matters she sought advice about, even if it was “a broad enquiry”.

[53] The discussion with Mr Fitz Gerald on 5 May 2014 clearly canvassed an array of matters relating to her employment, including the potential for her being dismissed. It seems to me, from Mr Fitz Gerald’s later actions, and Ms Hebbard’s interactions with him, especially on 7 May 2014, together with her failure to direct him to not purport to represent her in any settlement discussions regarding the ending of her employment when she clearly knew that was happening, that Mr Fitz Gerald considered he had authority to deal with all of the matters canvassed in the 5 May 2014 discussion and he had reasonable grounds to do so.

[54] I find that Ms Hebbard’s actions were not consistent with what she now asserts. I do not accept Ms Hebbard’s evidence that she gave Mr Fitz Gerald the confined instructions she asserts. It is more likely that she gave Mr Fitz Gerald a general authority to deal with all of the matters that were discussed on 5 May 2014.

[55] I also do not accept the thrust of Ms Hebbard’s contention that she had no interest in any offer of settlement that involved her ending her employment. If that was the case there was no need to seek any opinion from Mr Fitz Gerald whether she had given him authority to canvass a settlement or not. Nor would she have given an instruction to “do what you think”.

[56] It is therefore not surprising that Mr Fitz Gerald did purport to have the authority to make commitments and reach agreements on Ms Hebbard’s behalf.

[57] One could be critical of Mr Fitz Gerald lack of precision in his discussions, and his failure to correct what he now describes as misrepresentations and misunderstanding referred to above, but there is no evidence that supports a view that Allion Legal had not acted in good faith on the clear understanding that Mr Fitz Gerald did indeed have authority to represent Ms Hebbard and make agreements on her behalf.

[58] From the outset in the letter of 6 May 2014 under Mr Fitz Gerald’s letterhead and signature he stated that he represented Ms Hebbard. The letter states throughout that Mr Fitz Gerald has received instructions from Ms Hebbard. It claimed that MRS had breached the FW Act by taking adverse action against Ms Hebbard. It also claimed that MRS was endeavouring to construct the dismissal of Ms Hebbard on a false premise and without a valid reason.

[59] Indeed Ms Hebbard’s representative for these proceedings in making a request for an Order for Mr Fitz Gerald to attend states that “Mr Fitz Gerald represented the Applicant [Ms Hebbard] from the 5 May 2014 to the 19 May 2014 inclusive and was instrumental in negotiating a settlement agreement albeit without the expressed (sic) instruction or authority of the Applicant [Ms Hebbard]”. On the face of that statement it appears that there is no contention that Mr Fitz Gerald did not represent Ms Hebbard throughout the period stated, nor does it appear that there is a contention that Mr Fitzgerald did not reach an agreement. The only contention is that he did not have express instruction or authority to do so.

[60] All of the interactions between Mr Fitz Gerald with Allion Legal point to not only him representing Ms Hebbard but having the authority to make agreements. It was Mr Fitz Gerald who initiated exploring the potential for a settlement. He did so by email on 7 May 2014 including referring to a “severance payment”. Mr Fitz Gerald became involved in discussions with Ms Reid and Ms Kemp which clearly involved the ending of Ms Hebbard’s employment.At no stage did Mr Fitz Gerald qualify his authority and at no stage did he indicate any agreement was subject to either receiving further instructions or subject to an acceptable deed of settlement. Indeed it seems, although I do not find, that the main purpose of the seeking of the deed was to protect Ms Hebbard from any future actions that may be taken against her by St Ives.

[61] Indeed as late as 16 May 2014 during a telephone conference involving Mr Fitz Gerald, Ms Reid and Ms Kemp, Ms Reid conveyed to Mr Fitz Gerald that she had been informed by St Ives that Ms Hebbard was advising others in respect of not signing the deed and that she had not agreed to a settlement. Ms Kemp says that Mr Fitz Gerald gave the following assurances:

● he had the authority to act for Ms Hebbard; and
● he had explained to Ms Hebbard the consequences of entering into the deed, and
● she understood these consequences.

[62] Ms Reid sent an email to Mr Fitz Gerald on 16 May 2014 which confirmed the discussion which had taken place that day and attached the deed of settlement with the figures provided by St Ives. She also requested Mr Fitz Gerald to advise immediately if any of his assurances were not correct.

[63] On 19 May 2014 Ms Kemp received an email from Ms Reid forwarding a copy of an email from Mr Fitz Gerald which advised he was not able to confirm he had authority to act for Ms Hebbard or confirm when Ms Hebbard would sign the deed of settlement. In the email Mr Fitz Gerald stated that the email was “confirmation that I [Mr Fitz Gerald] no longer act for Ms Hebbard in these matters” (my emphasis).

[64] In relation to the law regarding the apparent and implied authority of a representative to settle a matter MRS referred to the New South Wales Court of Appeal decision in Cassar v New South Wales Crime Commission [2014] NSWCA 356. At paragraph [57] the NSWCA cited Brightman LJ in Waugh v HB Clifford & Sons Ltd [1982] Ch 374 at 387 as follows:

“The law thus became well established that the solicitor or counsel retained in an action has an ‘implied’ authority as between himself and his client to compromise the suit without reference to the client, provided that the compromise does not involve matter ‘collateral to the action’; and a ‘ostensible’ authority, as between himself and the opposing litigant, to compromise the suit without actual proof of authority, subject to the same limitation ...”

[65] The NSWCA continued at paragraph [59]:

“Waugh v HB Clifford & Sons Ltd was cited by White J in Across Australia Finance v Bassenger [2008] NSWSC 799, where his Honour was also concerned with the extent of a solicitor’s authority to compromise proceedings. His Honour, at [78], referred to the authority of a legal practitioner to compromise proceedings in the following terms:


‘A solicitor or barrister retained to conduct litigation ordinarily has implied as well as ostensible authority to bind his or her client to a compromise of the proceedings provided that he or she does not act contrary to instructions, the circumstances do not otherwise indicate that express instructions are required, the compromise does not include matters collateral to the action, and the compromise is effected in a fair and reasonable manner so that is fairly within the limits of authority (Donellan v Watson (1990) 21 NSWLR 335 at 342; Prestwich v Poley (18650 18 CB (NS) 806; 144 ER 662; Waugh v H B Clifford & Sons Ltd [1982] Ch 374 at 387.)”

[66] The evidence establishes to my satisfaction that Allion Legal had sound reasons to have the view that Mr Fitz Gerald had the requisite authority to make the agreement I found above that he made. There is nothing in his conduct nor any of his written and verbal communications that would have caused any doubt in the minds of Ms Reid nor Ms Kemp that he did not have the authority he portrayed that he had.

[67] I therefore find that Allion Legal acted on the understanding that Mr Fitz Gerald represented Ms Hebbard and had authority to reach the agreement he made on her behalf with Allion Legal.

[68] Indeed the issue in this matter seems to me to be not so much a dispute between Ms Hebbard and St Ives but rather a dispute between Ms Hebbard and Mr Fitz Gerald and in particular whether he exceeded his authority.

[69] Ms Hebbard’s case here was argued on the basis that no actual authority existed for Mr Fitz Gerald to enter into an agreement on her behalf. However an agreement can be binding if an agent displays and acts with apparent or ostensible authority. In Workers Union v Leighton Contractors Pty Ltd (see [2013] FCAFC 4 (29 January 2013)) Katzman J considered the application of s.793 of the FW Act. Notwithstanding the different circumstances here the principle is the same viz; “it is no answer to the proposition that he had apparent authority to show that he had no actual authority”. 2 

[70] I find that Mr Fitz Gerald was given implied authority and his conduct reflected that even though he evidenced to the contrary. The implied authority was given by Ms Hebbard when she stated that Mr Fitz Gerald should “do what you think”.

[71] Mr Fitz Gerald also displayed ostensible authority. The way he raised the issue, the nature of his comments and the failure to correct Allion Legal when he exercised that authority all lead to a finding that Mr Fitz Gerald had apparent or ostensible authority.

[72] However, I do not make a finding that Mr Fitz Gerald had and exercised actual authority for two reasons. Firstly, Mr Fitz Gerald stated repeatedly in his evidence that he did not have that authority and secondly I consider it inappropriate for me to make such a finding as it could prejudice other potential actions.

The status of the agreement?

[73] It remains to determine whether the agreement made is binding. Ms Robinson referred to Masters v Cameron (1954) 91 CLR 353 at:

“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 precises 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 ...” 3

[74] Here I consider that the agreement reached was within the first class referred to in Masters v Cameron. I agree with the submissions of Ms Robinson that it was a final agreement intended to be immediately binding with an intention to have the terms restated in a fuller written form with more precise terms but not different in effect.

[75] As I have found above there was no conditionality or requirement that the agreement was subject to anything. Or put more colloquially it was an agreement reached without any Houdini conditions.

[76] The evidence here does not convince me that Mr Fitz Gerald acted without authority. Mr Fitz Gerald’s contention is that he did not make an agreement and it is only in support of that contention that he evidenced that he did not have authority to make one.

Conclusion

[77] I find that an agreement was reached between Ms Hebbard’s representative and MRS’s representative that Ms Hebbard’s employment come to an end on 9 May 2014. I also find that Ms Hebbard’s representative had the authority to make that agreement. I thus find that Ms Hebbard’s employment did come to an end on 9 May 2014 and that it came to an end by mutual agreement. There was some mention that the 16 May 2014 was the effective date of termination and there is some evidence to that effect but regardless of whether the date was 9 May 2014, as I have found, or 16 May 2014 the termination was not a dismissal but a termination by mutual consent.

[78] I therefore find that Ms Hebbard was not dismissed and therefore is not a person protected from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

P King of Regis Industrial Relations on behalf of the Applicant.

B Robinson of Allion Legal on behalf of the Respondent.

Hearing details:

Perth.

2014:

November 20, 26

Final written submissions:

Applicant, 28 November 2014.

Respondent, 27 November 2014.

 1   This email was not produced.

 2   Workers Union v Leighton Contractors Pty Ltd (see [2013] FCAFC 4 at [91]. See also Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital; Kaizen Hospitals (Mountain District) Pty Ltd T/A Melbourne Eastern Private Hospital; Kaizen Hospitals (Essendon) Pty Ltd T/A Essendon Private Hospital[2013] FWCFB 1846.

 3   Masters v Cameron (1954) 91 CLR 353 at 360.

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