Matthew Meekin v Suez Recycling and Recovery Pty Ltd

[2021] FWC 2254

[2021] FWC 2254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Meekin
v
Suez Recycling and Recovery Pty Ltd
(U2020/12539)

COMMISSIONER BISSETT MELBOURNE, 31 MAY 2021

Application for an unfair dismissal remedy - whether binding settlement reached - applicant and respondent not complied with obligations in agreement - agreement not finalised - application to be referred to arbitration.

[1] This decision concerns a request by Mr Matthew Meekin to have his application for relief from unfair dismissal in relation to his employment with Suez Recycling and Recovery Pty Ltd heard in circumstances where the application appears to have settled following conciliation. Mr Meekin says that a settlement agreement reached in the matter is not binding and he should have his application heard.

Background

[2] On 18 September 2020 Mr Meekin (the Applicant) made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Meekin had been employed by Suez Recycling and Recovery Pty Ltd (the Respondent) with his employment ending on 4 September 2020.

[3] On 7 October 2020, the application was subject to a conciliation before a Fair Work Commission staff conciliator (the staff conciliation), however the matter did not resolve.

[4] At the conclusion of the staff conciliation, the conciliator sent an email to the parties which said the file would be placed on hold until 14 October 2020 to allow parties to consider their positions and any options to resolve the matter.

[5] At 5:01am on 15 October 2020 the Commission received correspondence from the Mr Meekin’s representative, Mr Klaus Pinkas, Transport Workers’ Union (TWU) ACT Sub Branch Secretary. Mr Pinkas stated that the matter had resolved and he was awaiting the Respondent to provide a deed of release. Mr Pinkas also noted that a Form F50 - Notice of Discontinuance would be filed once the settlement amount was paid to the Applicant.

[6] At 8:26am on 15 October 2020 the staff conciliator emailed parties acknowledging that the matter had been settled and that the Commission’s involvement in the matter had concluded. The file was subsequently marked as settled and closed by Commission staff.

[7] At 8:43am on 15 October 2020 Mr Meekin contacted the staff conciliator via email stating that:

“We have not reached any agreement yet.

Klaus has apparently negotiated an in principal settlement on my behalf, but I am yet to see, read, or agree to anything. If the pittance Suez is offering hinders my rights to receive continued workers comp support, or to seek compensation or damages in the future, then I will not be agreeing and we will need to continue with the unfair dismissal process.”

[8] Some months later on 12 March 2021 Mr Meekin sent an email to the staff conciliator stating:

“I wish to proceed with a commission hearing over my unfair dismissal.  This was always my intention should we fail to reach a mutual agreement.  I clearly stated this both during our conciliation teleconference, and a week later when you emailed to say the matter was finalized and I had to quickly respond to inform you I had not yet seen let alone agreed to any kind of offer from Suez, and that nothing was finalized.”

[9] On 25 March 2021 Mr Meekin emailed the Commission stating that he wished for his matter to be re-opened and reiterated that he had not received any offer of settlement from the Respondent or reached an agreement.

[10] The file was subsequently referred to me to determine if the matter should be referred for arbitration.

Submissions and evidence

[11] On 31 March 2021 my Chambers wrote to the parties and indicated that, if there was a binding settlement agreement between the parties, the agreement would need to be enforced by a relevant Court. Submissions were therefore sought from the parties as to the existence of such an agreement. Submissions were subsequently received from the TWU, the Respondent, and Mr Meekin on 8 April 2021.

[12] Following receipt of written submissions, Mr Meekin sought to be heard on his application. The hearing was conducted by video on 13 May 2021. Mr Meekin appeared on his own behalf, Mr Apostolas for the Respondent and Mr Pinkas of the TWU.

Mr Meekin

[13] Mr Meekin submits that no agreement was ever reached between himself and the Respondent to settle his unfair dismissal claim. He states that he never verbally agreed to or signed the deed and says that:

“…if any binding or non binding agreement has been reached between Klaus [Mr Pinkas]/ the twu and Suez, it has been made without my permission or instruction.”

[14] Mr Meekin said that he never agreed to any settlement amount. While he did agree to review a settlement agreement he said that it was the totality of the agreement – not just the monetary settlement amount – that was important to him. In particular he was “most insistent” that he not be barred from pursuing an appropriate claim in relation to a workplace injury he had sustained.

[15] Mr Meekin said he told Mr Pinkas that he needed to get the maximum amount possible in any settlement. While he had instructed the TWU to make an offer to the Respondent he also thought that he would be “at the table” participating in negotiations with the Respondent.

[16] Mr Meekin said that he sought “third party” advice in relation to the offer made by the Respondent and was told that the amount seemed low. He therefore asked the TWU to seek a greater amount. He agreed that Mr Pinkas subsequently told him this had been rejected by the Respondent. Mr Meekin further said that the proposed agreement provided to him had contradictory paragraphs such that it was not clear that he could pursue a damages claim in relation to his injury.

[17] Mr Meekin submits that as soon as he saw Mr Pinkas’ email to the Commission notifying that the matter had resolved, he immediately contacted the staff conciliator to inform him that no agreement had been reached and as such no binding settlement was ever made. This, he says, is evidence that he never reached agreement.

Transport Workers Union

[18] The TWU submits that, following the staff conciliation Mr Pinkas, on behalf of the Applicant, engaged in discussions with the Respondent between 7 and 15 October 2020 in an effort to resolve the dispute. During this time, the Respondent advanced an offer of settlement which was communicated to the Applicant by Mr Pinkas. Mr Pinkas told the Applicant at this time that he did not think the Respondent would offer any more in monetary terms.

[19] The TWU states that the Applicant provided instructions to Mr Pinkas that he was prepared (albeit reluctantly) to accept the Respondent’s offer to resolve the matter. As such, Mr Pinkas informed the Commission on 15 October 2020 that the matter had settled.

[20] The TWU further submits that on 19 October 2020, the Respondent provided Mr Pinkas with a copy of the deed reflecting the settlement agreement. Mr Meekin identified to Mr Pinkas that the proposed deed would limit his right to pursue common law action in relation to his workplace injury. Mr Pinkas agreed this was a deficiency in the proposed agreement. The TWU and Respondent then engaged in some further communications regarding the insertion of an exception into the deed that would allow the Applicant to pursue a claim for damages for a work injury. Appropriate amendments were made to the document and negotiations finalised.

[21] On 27 October 2020, Mr Pinkas provided the Applicant with a final version of the deed that reflected the in-principle agreement reached between the parties.

[22] On 11 December 2020, Mr Pinkas received an email from the Applicant stating that he wished to reject the offer contained in the proposed deed and gave instructions that he wanted an increase to the settlement amount. The Respondent subsequently rejected the Applicant’s new offer put forward by Mr Pinkas. Mr Pinkas conveyed this to the Applicant.

[23] On 23 December 2020 Mr Pinkas received an email from the Applicant that said:

“Upon further consideration and having received third party advice I believe the terms set out in your potential deed of separation significantly undervalue my service to Suez and their obligations to me.

I write to instruct you to put forward to Suez on my behalf an amended deed of separation whereby I am paid for 12 weeks of service rather than the currently proposed 7 weeks, or $9918.”

[24] On 11 February 2021, the Applicant wrote to Mr Pinkas stating that he had not received an offer from the Respondent. Mr Pinkas replied the same day drawing the Applicant’s attention to the correspondence and finalised deed that had been sent to him on 27 October 2020.

[25] The TWU submits that the Applicant did communicate to Mr Pinkas that he agreed in principle to accept the Respondent’s offer. The TWU says that it took all reasonable steps to explain the difficulties and associated risks in withdrawing from an in principle agreement to the Applicant.

[26] Mr Pinkas agreed that, in advising the Commission on 15 April 2021 that an agreement to settle the matter had been reached between the parties he had not, at that time, seen the written terms of the settlement agreement proposed by the Respondent.

The Respondent

[27] The Respondent submits that the application for unfair dismissal should be dismissed on the basis that it has no reasonable prospects of success because a binding settlement agreement was reached.

[28] The Respondent states that a settlement was agreed in principle however the deed of release was not executed by the Applicant and as such payment has not been made to the Applicant. It therefore states that the agreement was not “finalised”.

[29] The Respondent said that no payment has been made to the Applicant as he has not signed and returned the settlement agreement.

Communication post hearing

[30] Following conclusion of the hearing on 13 May 2021 the Applicant provided correspondence to the Commission consisting of a string of emails and an unsigned settlement agreement. My chambers contacted all parties to determine if there was any objection to this material being taken into account by the Commission in determining the matter.

[31] Both the Respondent and the TWU were given a week to consider the documents. Neither sought to make any further submissions or otherwise comment on the documentation. No objection was raised to the Commission taking account of the documents.

[32] These documents are directly relevant to the matter before me. While it is not clear why Mr Meekin did not provide this to the Commission with his written submissions I have taken them into account.

The proposed agreement

[33] The proposed settlement agreement provided to Mr Meekin by the TWU following discussions with the Respondent is a version of a settlement agreement regularly used by the Commission when it facilitates agreements of this type.

[34] The settlement agreement provided for a payment to Mr Meekin of $9,918.08. It also contained a conditional release clause in that Mr Meekin would not release the Respondent in relation to “all claims” until such time as the Respondent complied with its obligations under the agreement in relation to the payment.

[35] The settlement agreement also contained a clause which had the effect of carving out from the release any matters in relation to workers compensation and the pursuit of a common law claim in relation to his workplace injury.

[36] The emails to which the draft settlement agreement was attached included an email from Mr Pinkas to the Applicant on 27 October 2020 which said:

Hi Matt

Can you sign the attached deed and get it back to me.

Ta

[37] Mr Meekin then forwarded this on the same day to a person not otherwise identified in these proceedings which said:

Hi Chris

Suez still haven't provided any kind of terms so Klaus from twu wrote this up.himself [sic] do you mind giving it a squiz?

Thanks mate

[38] It is not known what “Chris” said in response.

Legal Principles

[39] The legal principles relevant to the determination of whether a binding settlement agreement has been reached between parties was considered in Singh v Sydney Trains 1:

[46] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited: 2

“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).”

[47] The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed. 3 Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties' solicitors.

[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. 4 

•  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. 5 

•  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. 6  

•  Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 7  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.8

•  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”. 9 Such a request for information does not revoke the offer and may constitute acceptance of the offer.

[49] Ultimately the question is whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered.” 10 Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.11

[50] A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. 12 A counter-offer accepted by the original offeror creates a binding agreement.13

[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 14 

[52] The phrase “‘in principle’ agreement” or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract. 15 However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.16 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.17

[53] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. 18 First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.19

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them. 20

[40] I have applied these principles in the determination of the matter before me.

Consideration

[41] It is well established that an agreement that is not signed can nevertheless be binding on the parties to it. 21

[42] Both the TWU and the Respondent say they reached an agreement in the period following conciliation. However, the Applicant denies that such an agreement was ever reached or that he gave instructions to the TWU as his representative that agreement was reached.

[43] The issue for determination is whether there was an agreement to settle the unfair dismissal proceedings and, if there was, what type of agreement was reached and what obligations it placed on the parties.

[44] Determination of whether an agreement was reached gives rise to the question of whether the Applicant provided any instructions to Mr Pinkas to settle the proceedings on the basis ultimately agreed between Mr Pinkas and the Respondent and reflected in the written agreement provided to the Applicant on 27 October 2020. This question turns on the substance of the communications that took place between the Applicant and Mr Pinkas during the period October 2020 - March 2021.

[45] There is no doubt that discussions did occur between the Applicant and Mr Pinkas about potential terms of settlement. The TWU submits that Mr Pinkas gave clear advice about the range of remedies available and the difficulties and risks associated with withdrawing from an in principle agreement. According to the TWU, the Applicant said he was willing to resolve the matter on the proposed terms (including the apparent amendment in relation to workplace injury related issues).

[46] The Applicant submits that the immediacy with which he contacted the staff conciliator by way of the email of 8:43am 15 October 2020 to inform them that he had not reached a settlement supports a finding that he had not provided instructions that he was willing to settle the matter. A conclusion to this effect is supported by the evidence that further negotiations occurred with amendments agreed between the Respondent and Mr Pinkas up to 27 October 2020 and that the Applicant sought a higher payment than that offered by the Respondent.

[47] In the 23 December 2020 email from the Applicant to Mr Pinkas that was sent some 2 months after the “finalised” deed was provided to him, the Applicant stated that “upon further consideration” and after having received “third party” advice he now sought an increased settlement sum. Whilst this communication might favour the view that the Applicant had agreed to the terms as originally proposed (as he now sought some variation to it), it, in conjunction with his communication of 15 October 2020 with the Commission supports a conclusion that there may not have been clarity in communications between Mr Meekin and the TWU. This is not a criticism of the TWU. Having heard from Mr Meekin and observed him give evidence in these proceedings it is apparent that he does not listen well and has a very scattered approach in his communication of ideas and thoughts with multiple trains of thought but little coherence evident when he speaks. The Applicant, in this respect, seems to be driven more by what he believes he is entitled to rather than a dispassionate review of his case or of communications he was engaged in with his representative. In this respect I would observe that the proposed agreement of 27 October 2020 gave the Applicant that which he sought in relation to his common law action in relation to his injury.

[48] It is also apparent from the evidence of the Applicant that he has constantly sought advice that suits the outcome he believes he is entitled to. He did not think Mr Pinkas was doing enough for him as he “knew” that another worker from the Respondent who had been dismissed had received a larger settlement when represented by another TWU organiser. Mr Meekin wanted that person to represent him. Mr Meekin wanted the TWU to refer him for legal advice and says that Mr Pinkas refused to do this. Mr Meekin also sought “third party advice” (it is not clear from whom but at least from “Chris”) who suggested he should get a better settlement. Mr Meekin, astonishingly, thought the TWU should pursue this improved assessment on his behalf when the TWU assessment was that he had received the best offer he could get.

[49] It is clear from the communications between the Applicant, Mr Pinkas and the Respondent that no agreement was a reached on 15 October 2020. It was wrong of the TWU to advise the Commission this was the case. However, I am satisfied that the Applicant did reluctantly agree to the amended offer which included the resolution of his right to pursue his common law workplace injury matter. This offer was reflected in the proposed agreement of 27 October 2020. Further, I am satisfied that the parties reached agreement at or before 27 October 2020 and intended to be bound by the agreement but that it was to be reduced to writing.

[50] It is not in dispute that no settlement agreement has been signed by the parties and that no payment has been made by the Respondent to Mr Meekin.

[51] I accept, in the absence of any advice to the contrary, that the draft agreement provided to Mr Meekin by Mr Pinkas reflects the agreement reached between the Respondent and the TWU on Mr Meekin’s behalf. The settlement agreement sent by Mr Pinkas which Mr Meekin was asked to sign on 27 October 2020 however contains a conditional release clause. Clause 3.6 states (with my emphasis):

On the Respondent complying with clauses 3.1 to 3.5 above, the Applicant releases and forever discharges and releases the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant‘s employment with the Respondent, including but not limited to the cessation of the employment.

[52] Clauses 3.1-3.5 reflect the payment of the settlement amount to the Applicant, matters associated with that payment and that the Applicant would be considered to have resigned his position. The release given by the Applicant is wholly dependent on the Respondent complying with its obligations.

[53] The release clause in the agreement has not been “activated” as would occur if the Respondent had complied with its obligations under the agreement. In this way the agreement reached can be characterised as an “accord and conditional satisfaction”. 22 Had the Respondent complied with its obligations under the agreement the matter for me to determine may have been different. As it is, neither Mr Meekin nor the Respondent has complied with its obligations. Both have walked away and neither disputes that this has been legitimately done such that all that is left is the initial application of Mr Meekin for unfair dismissal.

[54] Ultimately the Respondent holds the key to this matter. It says that the agreement reached was never executed and therefore not finalised (in the Respondent’s words) although did not articulate what “not finalised” meant. There is no evidence of the Respondent itself signing the written documentation. Further, there is no evidence of payment being made to the Applicant (and no claim that such a payment was made) such that the release condition contained in the agreement has not been met.

[55] For this reason the Applicant has not provided any release to the Respondent from his claims in relation to his employment.

Conclusion

[56] I have considered all of the evidence including each of the reasons set out in the Applicant’s written submissions to argue no binding agreement was reached. Regardless of whether a binding settlement agreement was reached the agreement put to the Applicant does not, on its terms, operate to limit the unfair dismissal claim. As the Respondent says the agreement was not finalised. For this reason the application for relief from unfair dismissal will be referred for arbitration.

[57] The Applicant should not take this decision as any indication as to the merits of his claim or any likely outcome of arbitration of his claim.

COMMISSIONER

Appearances:

M. Meekin on his own behalf.

K. Pinkas of the TWU.

J. Apostolas for the Respondent.

Hearing details:

2021.
Melbourne (via video):
13 May.

Printed by authority of the Commonwealth Government Printer

<PR728907>

 1   [2017] FWCFB 4562 at [45]-[54].

 2 [2015] NSWCA 313 (Pavlovic) at [15].

 3   See, for example, Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 (Brambles).

 4   Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84].

 5   Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78].

 6   Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 26-27.

 7   Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34].

 8   Brookfield at [30]-[31].

 9   Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346.

 10   Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115.

 11   Redowood at [84].

 12   Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 (Saliba) at [77].

 13   Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334.

 14   Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA.

 15   Stephenson v Dwyer [2006] NSWSC 1439 at [37].

 16   Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91].

 17   Donaldson Coal at [91].

 18   Masters v Cameron. (1954) 91 CLR 353.

 19   Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills).

 20   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432.

 21   Masters v Cameron (1954) 91 CLR 353 at [23].

 22   See Osborne v McDermott [1988] 3 VR 1, 10.