Michael Souter-Robertson v Achieve Corporate Services Pty Ltd as Trustee for Achieve Cleaning Services Trust T/A Achieve Corporate Services

[2016] FWC 5166

[2016] FWC 5166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Souter-Robertson
v
Achieve Corporate Services Pty Ltd as Trustee for Achieve Cleaning Services Trust T/A Achieve Corporate Services
(U2016/3893)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Michael Souter-Robertson alleged that he was unfairly dismissed by Achieve Corporate Services. The application was referred to conciliation on 21 March 2016 but the matter did not settle. The parties were directed to file material and the matter was listed for hearing on 21, 22 and 23 June 2016.

[2] The matter was allocated to Deputy President Asbury who listed it for conciliation on 14 June 2016. Deputy President Asbury then advised the parties that the hearing dates were vacated and the parties were advised that if the conciliation were unsuccessful then she would discuss with the parties the relisting of the matter.

[3] The conciliation took place and on the same day Deputy President Asbury sent the parties an email which stated “please find attached terms of settlement prepared by Deputy President Asbury. The Deputy President confirms that once a notice of discontinuance is filed, it will be held in Chambers for 80 days after which time, if the Commission has not heard from the Applicant further, it will be filed and the application closed.”

[4] On 1 July 2016, Ms Linda Carlson, Mr Souter-Robertson’s representative, wrote to Deputy President Asbury and advised that:

“Upon careful consideration of his position, the Terms and the evidence, the Applicant has decided that he is unwilling to accept the Respondent’s offer of settlement and would like the matter set down for hearing.

While we have not previously encountered a similar situation and are therefore uncertain of procedure, in the circumstances of Deputy President Asbury presiding over the Conciliation Conference, the Applicant has instructed that we make application to the Registrar for the hearing to be conducted by a different Commissioner.”

[5] Ms Carlson did not, prior to this email, communicate with Achieve’s representative.

[6] On 6 July 2016, I caused an email to be sent to the parties. In that email I advised that I was considering whether I should dismiss Mr Souter-Robertson’s application under section 587 of the Fair Work Act 2009 because it had no reasonable prospects of success. I referred the parties to the decision of the Full Bench in Curtis v Darwin City Council 1 which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman2 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.

[7] I provided the parties with an opportunity to file material in relation my proposal that I should dismiss Mr Souter-Robertson’s application.

Submissions and evidence of Mr Souter-Robertson

[8] Mr Souter-Robertson filed a witness statement and was not required for cross-examination. In his evidence he made allegations about the conduct of Deputy President Asbury at the conciliation. I do not repeat those allegations in this decision.

[9] Ms Desleigh Burgess, who was present at the conciliation, also gave evidence and was not required for cross examination. Her evidence was in similar terms to Mr Souter-Robertson.

[10] Ms Carlson, who was present at the conciliation, also gave evidence. Her evidence was similar to Mr Souter-Robertson’s.

[11] Ms Carlson gave evidence that “it was also clear that until he received, read and signed the Terms of Settlement, he believed that he wasn’t bound by them and had no intention to be bound by them.”

[12] At the hearing Ms Carlson said that she had explained the Terms of Settlement in general terms to Mr Souter-Robertson.

[13] A medical certificate was relied upon by Mr Souter-Robertson to support his contention that he was incapable of making an agreement. That certificate dated 26 July 2016 advised that Mr Souter-Robertson had been seen on 24 June 2016 and he had multiple stressors leading up to that date. He had suffered chronic work-related stress and associated anxiety about his future.

[14] Ms Carlson submitted that at the time of the conciliation, Mr Souter-Robertson was suffering from mental fatigue and high anxiety. She said he was ill-equipped to make significant decisions about his application.

[15] She submitted that the evidence supported a finding that Mr Souter-Robertson did not have the capacity to give proper and reasoned instructions.

[16] Ms Carlson submitted that Deputy President Asbury exerted undue influence over Mr Souter-Robertson such that he was deprived of free will.

[17] Ms Carlson also submitted that “until receiving the Terms of Agreement, the Applicant was unaware that he would have to lie to future employers about the Respondent’s actions in unfairly terminating his employment. After reading the Terms and coming to this realisation, he contacted his advocate.”

[18] Ms Carlson submitted that Mr Souter-Robertson understood that his agreement was subject to him agreeing to and signing the Terms of Settlement and its undisclosed elements, terms and conditions.

[19] Ms Carlson submitted that this was only an agreement to agree and was not binding or enforceable.

Submissions and evidence of Achieve Corporate Services

[20] Achieve submitted that Mr Souter-Robertson may have been under stress at the conciliation is not relevant to the question of whether there was an agreement struck at the conciliation.

[21] It submitted that Mr Souter-Robertson was represented at the conciliation. It submitted that the matters agreed to were not controversial or unusual except for the payment by instalment.

[22] Achieve made no comments about the allegations made against Deputy President Asbury as Achieve was not involved in joint discussions with Mr Souter-Robertson. It submitted that the allegations must be rejected as a basis for permitting the refutation of the settlement agreement.

[23] It submitted that, if what occurred did in fact occur, it was the responsibility of Mr Souter-Robertson’s representative to call an end to the conference and allow him time to think about alternatives but this did not occur.

[24] It submitted that medical evidence did not support a conclusion that Mr Souter-Robertson was incapable of making a decision.

[25] It submitted that there was an agreement reached at the conciliation and it was not contingent upon the finalisation of a settlement agreement. It submitted that Mr Souter-Robertson should not be permitted to resile from the agreement made because he had “buyer’s remorse.”

[26] Achieve accepted that if the Commission dismissed Mr Souter-Robertson’s application then Achieve would pay the first instalment of the monies due under the Terms of Settlement and then comply with its other obligations in accordance with its terms.

Submissions in reply

[27] Ms Carlson, in reply, reiterated her earlier submission and added that she said she informed Mr Souter-Robertson that his termination would be characterised as a redundancy. She was of the opinion that most employees see this as a benefit. She further submitted that “she had no idea that the Applicant was a man of such integrity that the idea of mislabelling his termination was an abomination. She did not advise him regarding this point because she was unaware that he saw it as a crucial negative point. For this reason she was unaware that she had to explain to him that he would have to mislabel the termination in the future.”

[28] Ms Carlson submitted that the written agreement serves a purpose namely to formalise and bind the parties and if the verbal agreement was sufficiently clear and binding there would be no point in a written agreement. Further it was submitted that there could be no binding agreement because of his mental health issues.

Was there an agreement to settle the unfair dismissal claim?

[29] The High Court Masters v Cameron³held that 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 deal with by a formal contract, the case may belong to any of three classes. The three classes are:

1. 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.

2. 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.

3. 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.

[30] Ms Carlson further submitted that this was an agreement of the third type described in Masters v Cameron.

[31] I do not accept the submission. While Ms Carlson gave evidence that “it was also clear that until he received, read and signed the Terms of Settlement, he believed that he wasn’t bound by them and had no intention to be bound by them,” nowhere in his evidence did Mr Souter-Robertson say this. He used terms like “I accepted the offer”, “I felt I had no choice but to accept the offer.” While I accept he, on reflection formed a view about his dismissal being characterised as a redundancy, I am satisfied that it was explained to him at the conciliation by his representative that this was how it was to be characterised. There is nothing in the evidence that suggested that Mr Souter-Robertson objected to this at the time.

[32] Further, there was nothing in the email sent by the Deputy President to suggest that there were any further matters that required agreement. If Ms Carlson was of the view that the Terms of Settlement did not reflect what was agreed, then she should have contacted Achieve’s representative and the Commission and advised which of the Terms of Settlement were not what was agreed. Instead Mr Souter-Robertson sought to avoid the agreement in its entirety.

[33] I am satisfied on the evidence that there was an agreement reached by the parties at conciliation. I am satisfied that is was an agreement of the kind described in category 2 of Masters v Cameron.

Competency and undue influence

[34] If I found that an agreement was made, Ms Carlson submitted that I should disregard it because it was made at a time when Mr Souter-Robertson was not capable of making an agreement or alternatively Mr Souter-Robertson suffered undue influence such that he was deprived of his free will.

[35] It is not necessary for me to make any determination in relation to either of these allegations. Both submissions are premised on the proposition that Mr Souter-Robertson agreed to settle his claim but he should not be held to that agreement.

[36] In AB v Tabcorp Holdings Limited⁴ the Full Bench considered whether the Commission had the power to set aside a notice of discontinuance. It accepted that such a notice could be set aside if filed by mistake or under duress. However the Full Bench doubted whether such a power could be exercised by the Commission. It held that such an application would need to be made by a court. I accept that a notice of discontinuance is of a different character to an agreement to settle. However the same reasoning applies in this matter. A party seeking to void an agreement because it was entered into as a result of undue influence or because the party alleges that they were not competent to make the agreement needs to apply to a Court. This is because it seeks a finding that the agreement is void, and of no legal effect. The Commission does not have the jurisdiction to make such a determination.

[37] To protect the applicant’s position whilst seeking such a declaration from a court, the applicant could apply to the Commission seeking that the Commission refrain from making any decision to dismiss the unfair dismissal application until such a determination is made by the Court on competency or undue influence.

Conclusion

[38] If there is a binding agreement to settle an unfair dismissal claim, the Commission has the power to dismiss an application as it has no reasonable prospects of success.⁵

[39] The power to dismiss is a discretionary. At all times Mr Souter-Robertson was represented. Achieve has agreed to comply with the Terms of Settlement and make the first instalment seven days after the date of my decision and comply with its other obligations in accordance with the timeframe set out in the Terms of Settlement.

[40] I am therefore prepared to exercise my discretion to dismiss the application.

DEPUTY PRESIDENT

Appearances:

L. Carlson for the Applicant.

C. Pollard for the Respondent.

Hearing details:

2016.

Melbourne and Brisbane, by telephone link:

July 27.

 1   [2012] FWAFB 8021

 2 [2011] FCA 975

3 [1954] HCA 72

4 [2015] FWCFB 523

5 See Australia Postal Corporation v Gorman [2011] FCA 975 and Curtis v Darwin City Council[2012] FWAFB 8021

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