Mark Nolan v Howard & Sons Pyrotechnics (Manufacturing) Pty Ltd

[2012] FWA 9370

[2012] FWA 9370

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Nolan
v
Howard & Sons Pyrotechnics (Manufacturing) Pty Ltd
(U2012/7052)

COMMISSIONER MCKENNA SYDNEY, 5 NOVEMBER 2012

Application for unfair dismissal remedy - application dismissed.

[1] Mark Nolan (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy. The applicant’s former employer, Howard & Sons Pyrotechnics (Manufacturing) Pty Ltd (“the respondent”), dismissed the applicant following an inspection report made by the Workcover Authority of NSW concerning an uncontrolled explosion at the workplace. Among other matters, the Workcover report commented on a lack of procedure by the applicant and another employee in connection with that explosion.

[2] The applicant was dismissed on 30 March 2012 and lodged the application for an unfair dismissal remedy on 10 April 2012. On 8 May 2012, the matter was listed for conciliation by telephone before a Fair Work Australia conciliator (“the conciliator”). The applicant participated in the telephone conciliation in person. Fiona Howard participated in the telephone conciliation on behalf of the company. Mrs Howard is the spouse of one of the directors of the respondent, and she has a background in human resources management. The matter did not resolve on the day of the telephone conciliation, but the respondent left an offer open, or “on the table”, for further consideration by the applicant.

[3] Following various communications between the applicant, the respondent and the conciliator, settlement subsequently was reached. Relevantly, on 17 May 2012, Mrs Howard advised the conciliator that she had taken advice and would take the respondent’s offer “off the table”, but would listen to any proposal from the applicant. The conciliator asked Mrs Howard whether the respondent would agree to leaving the offer “on the table”, and Mrs Howard agreed. Later on 17 May 2012, the conciliator advised Mrs Howard the applicant had accepted the respondent’s offer. The conciliator undertook to prepare terms of settlement reflecting the agreement between the parties. That same day, the conciliator sent an email to the parties setting out the terms of settlement to sign and exchange, and also attaching a notice of discontinuance. The applicant then sent an emailed communication to the conciliator, which was not copied to the respondent, relevantly advising that, as he could appear for himself, he would proceed to a hearing. The applicant apologised to the conciliator about the “misunderstanding” and asserted the conciliator had given him very little time to decide what he wanted to do. The applicant also advised the conciliator he was going overseas, in requesting that she “get back to me asap”. Some two months later, on 10 July 2012, the applicant sent handwritten correspondence by facsimile transmission to the Unfair Dismissal Team (“UDT”) advising that terms could not be agreed, that terms had not been signed and he wished to take the matter further. On 18 July 2012, the UDT forwarded a copy of the correspondence to Mrs Howard by facsimile transmission. Mrs Howard then sent an email to the applicant indicating that she considered the parties had come to a settlement and she had been waiting for the signed settlement-related documents from the applicant. Mrs Howard also confirmed the respondent was still happy to proceed with the settlement as previously agreed. The applicant did not respond to Mrs Howard’s email.

[4] On 18 July 2012, standard directions were issued by the UDT for an arbitration conference/hearing in Orange, New South Wales.

[5] On 1 August 2012, Gil Muir, agent, lodged a notice of representative commencing to act on behalf of the respondent. On 27 August 2012, Mr Muir lodged an objection by the respondent to the application. The objection was to the effect that a binding agreement existed between the parties and, on that basis, the application should be dismissed.

[6] The file record discloses the range of communications and events that followed. Among other matters, the respondent sought to have its objection dealt with as a preliminary matter and separately from any hearing of the substantive application. As a result, various amended directions were issued by the UDT. The file was then allocated to me to determine the respondent’s objection, with that objection listed for hearing in Orange on 23 October 2012. Dates have also been set by the UDT in November for a hearing concerning the substantive application. On 15 October 2012, prior to the scheduled proceedings concerning the respondent’s objection, I listed the matter for a mention by telephone. Further to discussions with the parties in the proceedings that day, the listing on 23 October 2012 in Orange was vacated by consent; the parties confirmed that they agreed to having the objection determined on the papers.

Submissions

[7] In support of its objection, the respondent relied on its written submissions and a witness statement by Mrs Howard. Mrs Howard’s witness statement details matters relevant to the settlement and the events in connection with, and following, the initial telephone conciliation. Given the nature of those matters, I do not propose in this decision to traverse the detail of settlement-related communications between the applicant, the respondent and the conciliator. I have, however, considered the matters described in Mrs Howard’s witness statement. Further, I note that the applicant did not express disagreement with any matters in that statement, other than to the extent that his written submissions were to the effect that it was the respondent which was proceeding under a misapprehension the matter had settled.

[8] Mr Muir submitted that Mrs Howard's evidence is an agreement was reached on 17 May 2012 when the applicant accepted the respondent's offer to settle his application. The conciliator's email of 17 May 2012 is consistent with Mrs Howard's evidence in this regard. There is no reason to think the conciliator would have told Mrs Howard that the applicant had agreed to the respondent's settlement proposal and then proceeded to send both parties the terms of settlement if the applicant had not given his agreement. To the respondent's knowledge, 1 the first communication from the applicant following the conciliator's email of 17 May 2012 occurred almost eight weeks later when the applicant sent his facsimile correspondence to Fair Work Australia.2 Mr Muir submitted the application should be dismissed using the broad discretion under s.587 on the basis that the parties entered into a binding agreement on 17 May 2012. In so submitting, Mr Muir referred to Masters v Cameron (1954) 91 CLR at 9; Thomas v Symbion Health[2011] FWA 5458; and Howey v Mars Australia Pty Ltd t/a Mars Petcare Australia[2012] FWA 6259.

[9] The applicant submitted that his application is based upon sound logic and legal rights. The gravity of the incident and the accusations against the applicant render the matter anything but frivolous. The applicant submitted the respondent was behaving vexatiously. He submitted that if Mrs Howard’s evidence is the basis of the respondent’s objection it appears the respondent is seeking a dismissal of the application on the grounds that they were mistaken or confused regarding settlement, despite the applicant’s emailed communication to the conciliator on 17 May 2012. The applicant submitted the application has every chance of success and no chance of failure based on the simple premise of truth.

Consideration

[10] I am satisfied that a settlement of this application was reached on 17 May 2012. That day, Mrs Howard informed the telephone conciliator that the respondent was proposing to take its extant settlement offer “off the table”. Mrs Howard agreed to the conciliator’s request that the offer be left “on the table”. It may be inferred that the conciliator then telephoned the applicant about matters. It may be further inferred that the applicant informed the conciliator he agreed to accept the respondent’s settlement offer. I accept Mr Muir’s submission that there would not have been any cause for the conciliator to telephone Mrs Howard to inform her that the applicant had accepted the respondent’s offer unless that had in fact occurred; and, similarly, there would not have been any cause for the conciliator to email to the parties a document setting out the agreed terms unless those terms had been agreed.

[11] I note that the applicant sent an email to the conciliator after he had received the email setting out the agreed terms, and he has placed reliance on this email in response to the respondent’s objection. I do not think anything of substance turns on this subsequent email from the applicant to the conciliator on 17 May 2012. That is, the settlement had already earlier crystallised through offer by the respondent and acceptance by the applicant via the conciliator. It was after the agreement had been reached that the applicant determined to renege on the agreement that he had otherwise advised the conciliator, and the conciliator duly conveyed to Mrs Howard, he had accepted. This is not a case where there was disagreement or dispute about the written detail of settlement terms provided by the conciliator to the parties. Rather, the applicant, having agreed on 17 May 2012 to settle the matter on the basis of the offer proposed by the respondent, later decided that he wished instead to proceed to a hearing rather than honouring that agreement.

[12] The respondent has proposed that the application should be dismissed and, in so submitting, referred to a number of cases and statutory provisions. Although not referred to, see also B. Curtis v Darwin City Council[2012] FWAFB 8021. I proceed on the basis that the respondent is still willing to abide by its obligations under the agreement, being an agreement which is, in any event, as binding on the respondent as it is on the applicant. This was a matter confirmed to the applicant in Mrs Howard’s most recent email to the applicant on 18 July 2012.

[13] I accept the respondent’s submission that the application should be dismissed, pursuant to s.587 of the Act, on the basis of its objection.

[14] As a corollary to dismissing the application, I vacate the hearing dates for 13 and 14 November 2012 and also set aside the various orders requiring attendance to give evidence.

[15] An order dismissing the application and setting aside the orders to attend has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr M Nolan in person.

Mr G Muir, Employer Services Pty Ltd, for Howard & Sons Pyrotechnics (Manufacturing) Pty Ltd.

Hearing details:

2012.

Sydney:

15 October.

Telephone link.

 1   As at the date the respondent’s materials were lodged.

 2   The respondent was not initially aware of the email from the applicant to the conciliator on 17 May 2012, being an email which followed the conciliator’s email attaching terms of settlement and a notice of discontinuance.

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