Mohammadali Tashayoei v Woolworths Group Limited T/A Woolworths Perth Regional Distribution Centre
[2021] FWC 5534
•1 NOVEMBER 2021
| [2021] FWC 5534 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mohammadali Tashayoei
v
Woolworths Group Limited T/A Woolworths Perth Regional Distribution Centre
(U2021/4199)
DEPUTY PRESIDENT BINET | PERTH, 1 NOVEMBER 2021 |
Application for an unfair dismissal remedy.
[1] On 16 May 2021, Mr Mohammadali Tashayoei (Mr Tashayoei) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Woolworths Group Limited trading as Woolworths Perth Regional Distribution Centre (Woolworths).
[2] On 28 May 2021, Woolworths filed a Form F3 - Employer Response to an unfair dismissal application asserting that Mr Tashayoei resigned as part of the settlement of workers compensation proceedings which he had commenced against Woolworths and was not dismissed from his employment (Jurisdictional Objection).
[3] On 18 June 2021 and 21 July 2021 the parties participated in conciliation conferences, but the issues in dispute could not be resolved.
[4] Taking into account the parties wishes and circumstances, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 8 September 2021 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 12 August 2021 (Directions).
Permission to be represented
[6] Whilst the FWC is not bound by the rules of evidence and procedure, it is subject to the common law principles of procedural fairness.
[7] Section 577 of the FW Act also provides that:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
[8] As the Practice Note - Fair Hearings commencing 15 July 2016 points out:
“The provision of a fair hearing is at the very heart of the Commission’s obligations to the parties who appear before it. A fair hearing involves the opportunity for all parties to put their case and to have that case determined impartially and according to law. Members of the Commission are bound to act “judicially” in the sense that they are obliged to provide procedural fairness and to determine matters impartially.”
[9] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. Deciding whether parties are to be represented is a key aspect of ensuring that the manner in which proceedings are conducted is fair and just.1
[10] It is not necessary for a party to be represented by a lawyer or a paid agent in the FWC. In fact, section 596(1) of the FW Act provides that a party may be represented in a matter before the FWC by a lawyer or paid agent, only with the permission of the FWC.
[11] Section 596(2) provides that the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
a. it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter (s.596(2)(a)); or
b. it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively (s.596(2)(b)); or
c. it would be unfair not to allow the person to be represented, taking into account fairness between the person and other persons in the same matter (s.596(2)(c)).
[12] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with section 596 of the FW Act.
[13] The Full Bench of the FWC in Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender 2 explained that:
“[47] The principles concerning the proper interpretation and application of s 596(2) are well established.
[48] The assessment of whether permission should be granted under section 596 involves a two-step process. The first step is to consider whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step ‘involves the making of an evaluative judgment akin to the exercise of a discretion’. It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.”
[14] Woolworths submitted that permission should be granted for it to be represented because it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Woolworths say that complexity arises in this matter from the significant factual dispute between the parties as to whether Mr Tashayoei was dismissed or resigned in the course of resolving workers compensation proceedings. They say further complexity arises from the various legal issues to be considered. Woolworths also point out that Mr Tashayoei has raised many additional factual matters which are not relevant to the issues to be determined at Hearing. Woolworths say that the granting of legal representation would facilitate more efficient proceedings by narrowing the consideration of the evidence to only relevant factual matters.
[15] Woolworths submit that it would be unfair not to allow it to be represented because it is unable to represent itself effectively because:
a. Woolworths Group Limited have a small in-house employment legal team based in Sydney, each of whom has either no or very limited experience in cross-examination.
b. Employees of Woolworths with human resources experience do not have extensive experience in cross-examination or workplace relations advocacy in formal hearings before the FWC.
[16] Mr Tashayoei opposed the granting of permission to be represented on the grounds that as a non English speaking person he would prefer to hire a lawyer but could not afford to do so and that this disadvantage left him feeling mentally stressed.
[17] The FWC provided Mr Tashayoei with the services of a Farsi translator during the Conferences and the Hearing. Mr Tashayoei has been living and working in Australia since at least 2014. During the Conferences and Hearing Mr Tashayoei demonstrated a good grasp of the English language and his reliance on the translator was minimal.
[18] The FWC provides extensive resources on its website in both written and video format in relation to the conduct of proceedings. Before the Hearing commenced I explained to Mr Tashayoei the Hearing process. The proceedings were conducted without undue formality. Mr Tashayoei was provided with frequent opportunities to seek adjournments during the Hearing.
[19] The evidence in chief was given by way of witness statements filed in advance of the proceedings. Woolworths called only two witnesses who each provided relatively short statements. Mr Tashayoei therefore had the opportunity to prepare any cross-examination questions in advance of the proceedings.
[20] In accordance with the Directions Woolworths filed written submissions in relation to the Jurisdictional Objection and the merits of the Application which set out in detail the relevant legal principles. This provided Mr Tashayoei with the opportunity to familiarise himself with the relevant legal principles in advance of the Hearing. I provided the parties with the opportunity to provide written closing submissions so that Mr Tashayoei had an opportunity to give some detailed consideration to the evidence before me when making his closing submissions.
[21] The Hearing requires the determination of a jurisdictional objection.
[22] As observed by Senior Deputy President Richards in CEPU v UGL Resources Pty Ltd3:
“[23] It appears to me that where the Respondent (in this case) seeks to agitate a jurisdictional issue then it would follow that representation by a lawyer would be a reasonable course. Jurisdictional issues by their nature are prospectively complex in their own right, and/or else may require a degree of familiarity with court and tribunal jurisprudence or authorities.
[24] In the situation currently before me, permission to appear for purposes of any jurisdictional considerations appears to me to be justified. That is, by granting permission for Mr Copeland to appear the efficiency with which the jurisdictional issue is dealt with would be assisted.
[25] It also appears to me that permission to appear in the substantive considerations should be granted to Mr Copeland for other reasons. Where jurisdiction is in question, it is important in any subsequent considerations to give close regard to the boundaries of the matters subject to the dispute and any proposed remedy. In such circumstances, a lawyer familiar with jurisdictional argument would ensure the matter would be dealt with more efficiently than would otherwise be the case.”
[23] I am satisfied that the nature of the jurisdictional objection creates complexity in the determination of this Application. Determination of the jurisdictional objection requires consideration of the intersection of the legal framework of the workers compensation jurisdiction, the legal principles in relation to what constitutes a dismissal for the purposes of the FW Act and the common law principles with respect to when a legally binding settlement is reached. I am satisfied that the granting of permission to be represented will ensure that the relevant legal principles are properly ventilated.
[24] Given the complexity arising from the amount of contested and arguably irrelevant evidence tendered I am also satisfied that the matter may be dealt with more efficiently if permission to be represented is granted.
[25] At the Hearing Mr Tashayoei assisted by a Farsi translator represented himself and Woolworths were represented by Mr Rayn Wade of Ashurst.
Evidence
[26] The Directions required the parties to file their witness and documentary evidence in advance of the Hearing. Mr Tashayoei filed a witness statement on his own behalf, gave oral evidence at the Hearing and was cross examined by Mr Wade.
[27] The following witnesses filed a witness statement, gave oral evidence on behalf of Woolworths and were cross examined by Mr Tashayoei:
a. Mr Bryan Ullinger – Special Counsel at McCabes who acted for Woolworths in relation to workers compensation claims made by Mr Tashayoei.
b. Ms Chantelle Maye France-Brotherton who is employed by Woolworths as Senior Culture and People Partner SA/NT/WA and who is based at the Woolworths Perth Regional Distribution Centre (PRDC).
[28] In accordance with the Directions a Digital Court Book containing the submissions, evidence and authorities relied upon by the parties was jointly tendered by the parties and marked as Exhibit DCB1 at the Hearing. At the Hearing Mr Tashayoei tendered correspondence between himself and his legal representatives which was admitted and marked Exhibit A1.
[29] Woolworths filed written closing submissions on 22 September 2021 and Mr Tashayoei filed written closing submissions on 6 October 2021.
[30] In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties even if not expressly referred to in these reasons for decision.
Background
[31] Mr Tashayoei commenced employment with Woolworths on 6 December 2012. 4
[32] On 1 December 2014 he commenced working at PRDC. 5
[33] At the time at which the events leading to his separation from Woolworths occurred he was employed in a full time capacity in the role of Distribution Centre Storeperson Grade Two. 6 He was employed pursuant to a common law contract and he was covered by the Perth Regional Distribution Centre Enterprise Agreement 2018. 7
[34] His ordinary hours of work were 38 hours per week. His hourly rate of pay was $34.46. He was paid on a weekly basis. 8
[35] Mr Tashayoei reports experiencing psychiatric difficulties since 2016. He attributes these difficulties to discrimination, harassment and abuse which he says he suffered in the workplace. He says that these difficulties were exacerbated by back injuries he suffered on 27 October 2017 and 13 March 2019. 9
[36] In 2020 he was diagnosed with major depressive disorder with prominent anxiety.
[37] Mr Tashayoei last worked at the PRDC on 24 June 2020. 10
[38] On the evening of 24 June 2020 he contacted his occupational health and safety provider and indicated that he was not well. The provider arranged for an ambulance to take him to hospital for a mental health assessment. 11
[39] During the course of his employment Mr Tashayoei made two applications under the Workers’ Compensation and Injury Management Act 1981 (WA) (WC Act). 12 The first application was pursuant to s.61(3) of the WC Act and sought orders that Mr Tashayoei remain in receipt of weekly compensation payments. The second application pursuant to Schedule 1, clause 17 of the WC Act sought an order that Woolworths pay for certain medical treatment (together the Workers Compensation Proceedings).13
[40] Mr Tashayoei was represented in the Workers Compensation Proceedings by a solicitor, Mr Christian Foyle of Foyle Legal (Mr Foyle). Woolworths was represented by Mr Ullinger. 14
[41] On 22 March 2021 a pre arbitration conference was held as a part of the Workers Compensation Proceedings with the assistance of a mediator. The matter did not resolve at the conference however some further without prejudice correspondence were exchanged between the parties the following day. 15
[42] The Workers Compensation Proceedings were listed for arbitration to commence at 10am on 31 March 2021. 16
[43] Mr Ullinger attended the premises of the Workers Compensation Arbitration Service to appear on behalf of Woolworths accompanied by Ms Kim Hamilton a Senior Case Manager for Woolworths insurers. Mr Tashayoei attended with Mr Foyle. 17
[44] Shortly prior to the commencement of the arbitration, Mr Ullinger says he approached Mr Foyle in the hallway outside of the court and asked him if his client was interested in continuing without prejudice discussions to explore the possibility of settlement of his claims. 18
[45] Mr Ullinger says that Mr Foyle told him that he would obtain instructions from his client. Mr Ullinger says that a short time later, Mr Foyle told him that his client was interested in having discussions to explore the overall resolution of his claims for compensation. At the parties' request, the Arbitrator stood the matter down to afford the parties the opportunity to discuss a possible resolution. 19
[46] Mr Ullinger says that Mr Foyle opened negotiations with the following offer: 20
a. Woolworths pay Mr Tashayoei a lump sum plus costs and disbursements in full and final settlement of all claims.
b. Mr Tashayoei would provide a full release.
c. Mr Tashayoei would resign from his employment with Woolworths.
d. Other terms proposed by Woolworths in settlement discussions held on 23 March 2021 would be accepted by Mr Tashayoei.
[47] Mr Ullinger says that while there were further negotiations between the parties in relation to terms such as the settlement sum, the condition that Mr Tashayoei resign was not revisited. 21
[48] Mr Ullinger says that the parties ultimately agreed on all terms to fully and finally resolve Mr Tashayoei’s workers compensation claims. This included a term that the weekly compensation payments would continue until non-disapproval of the agreement or 28 days whichever came first.
[49] In relation to how the resignation would be effected, Mr Ullinger says that the parties agreed that Mr Tashayoei would tender a written resignation and that the resignation would take effect on the date that the settlement agreement was “not disapproved” by WorkCover WA. 22
[50] Mr Ullinger and Mr Foyle then appeared before the Arbitrator and advised the Arbitrator that the parties had settled the dispute. The Arbitrator confirmed the settlement of the dispute and ordered that the matter be discontinued upon the settlement agreement being filed with the Director of WorkCover WA not being disapproved. 23
[51] Mr Ullinger asserts that the payment of the settlement sum and the discontinuance of the Workers Compensation Proceedings, were conditional upon the settlement agreement being recorded, signed and not disapproved by the Director of WorkCover WA. He also asserts that other substantive terms, including the cessation of weekly workers compensation payments and Mr Tashayoei’s resignation, were not subject to this condition, although the resignation was to take effect upon the nondisapproval by the Director. 24
[52] Mr Ullinger explained that the settlement agreement that was drafted to record the terms of agreement did not refer to Mr Tashayoei’s resignation because the inclusion of such terms often results in the agreement being disapproved by WorkCover WA. 25
[53] On 1 April 2021 Mr Tashayoei sent an email to Mr Foyle telling him that he would like more time to think about the settlement and asking to meet with him to discuss the matter further. 26
[54] Mr Foyle responded that same day stating inter alia: 27
“I am happy to meet with you if you like but the acceptance of an offer of settlement is final and legally enforceable so you are not able to go back on the decision. There is legal authority to this affect. Please see attached the letter we sent to you on 10 March 2021 before the pre-arbitration conference which explains this in more detail.
If you would like to meet with me please telephone our office to make an appointment to see me.”
[55] On 8 April 2021 Mr Tashayoei sent an email to Woolworths copied to Mr Foyle reporting that he had been informed his appointment with the medical provider treating him in relation the Workers Compensation Proceedings had been cancelled because his claim had been settled. Mr Tashayoei asserted in this email that the Workers Compensation Proceedings had not settled. 28
[56] Mr Foyle responded directly to Mr Tashayoyi stating that: 29
“I just want to explain the legal situation to you in this regard. You have legally agreed to settle your claim and one of the conditions of the settlement was that ‘statutory expenses’ which includes medical expenses ceased as at the date of settlement. The insurer is therefore are unlikely to pay for any further reviews with Dr Shah.
You have said you dispute there was a valid settlement. I have not conveyed your position to the workers compensation yet. If you would like me to convey this to the workers compensation insurer then let me know and I will do so.
I recommend you come in and see me before you do this. I have previously told you that in my view the settlement achieved is a good settlement and you are making a mistake which will likely put you in an inferior financial position.”
[57] Upon receipt of Mr Tashayoei’s 8 April 2021 email to Woolworths, Mr Ullinger emailed Mr Foyle requesting that he notify his client that the Workers Compensation Proceedings had been resolved. Mr Foyle replied stating that his client did not wish to proceed with the settlement and asking what Woolworths’ views were about this. 30
[58] On 12 April 2021, Mr Ullinger informed Mr Foyle that Woolworths believed the settlement agreement reached on 31 March 2021 was binding based on the authority of Nydegger v The GEO Group Australia Pty Limited [2013] WADC 15. He asserted that Mr Tashayoei was obliged to sign the settlement documents and return them to Mr Ullinger. Mr Ullinger foreshadowed that consistent with the settlement which Woolworths believed had been reached that Woolworths would discontinue the weekly compensation payments upon non disapproval of the settlement agreement or after twenty eight days depending on which occurred first. 31
[59] On 15 April 2021 Mr Tashayoei was invoiced $61,802.35 by Mr Foyles firm for legal fees associated with the Workers Compensation Proceedings. 32
[60] On 29 April 2021 Woolworths processed Mr Tashayoei’s separation from Woolworths as a resignation effective from 1 May 2021 on the basis that this was the date by which the settlement agreement would have been considered by the Director of Workcover for approval or disapproval. 33
[61] On 30 April 2021 Mr Tashayoei indicated that he intended to attend the workplace. Later the same day Ms France-Brotherton responded to him indicating that it was her understanding that the parties had settled the Workers Compensation proceedings on terms which included his resignation which had been processed by Woolworths resulting in his site access being removed. 34
[62] On 3 May 2021 Woolworths paid Mr Tashayoei a sum of $6698 gross in respect of his accrued annual leave. On 12 May 2021 Woolworths paid Mr Tashayoei the sum of $5565 gross as notice instead of requiring him to work out his notice period. On 9 June 2021 Woolworths paid him the sum of $9531 gross in respect of his pro rata accrued annual leave. 35
[63] Mr Tashayoei submits that his dismissal was unfair and seeks an order for reinstatement and back pay or alternatively an order for compensation.36
Consideration
[64] An order for reinstatement or compensation may only be made if Mr Tashayoei was unfairly dismissed and Mr Tashayoei was protected from unfair dismissal at the time of his dismissal.
[65] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
[66] The term ‘dismissed’ is defined in section 386 as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[67] Section 386(2) contains some exceptions which are not applicable to this Application.
[68] According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[69] Mr Tashayoei asserts that Woolworths dismissed him when it processed his separation on 1 May 2021.
[70] Woolworths assert that the parties, through their legal representatives, concluded a final and binding settlement agreement on 31 March 2021 a term of which was that Mr Tashayoei voluntarily resign from his employment.
[71] Woolworths say that it processed his separation as a resignation consistent with the terms of the settlement agreement and that therefore he was not dismissed for the purposes of section 386 of the FW Act because his employment was not terminated at the initiative of Woolworths nor was he forced to resign because of a course of conduct engaged in by Woolworths.
[72] Mr Tashayoei says that his separation from his employment with Woolworths can not be by way of resignation because he has not tendered his resignation in writing and submits that he should not be bound by the terms of the settlement agreement to do so.
[73] There appears to be no dispute about the material terms of the settlement agreement. Specifically, Mr Tashayoei does not deny that his voluntary resignation was a term of settlement.
[74] The contemporaneous evidence suggests that Mr Tashayoei believed a settlement had been reached. For example, in his email to Mr Foyle on the day following the settlement he sent an email to Mr Foyle warning that: 37
“… I may overturn the decision I have made yesterday.”
[75] Mr Tashayoei also appears to acknowledge in his written submissions that a settlement had been reached.
“… I was psychologically pressured to instantly accept a settlement … During the same meeting I was lured into verbal acceptance by Woolworths and my former lawyer, falsely asserting that I must accept the settlement as the last resort, even though that I was constantly disagreeing.” 38
[76] Woolworths submit that on the authority of Master v Cameron (1954) 91 CLR 353 (Masters v Cameron) a binding settlement had been reached by which Mr Tashayoei is bound.
[77] In Masters v Cameron it was held that where parties have been negotiating and reach an agreement upon terms of a contractual nature and also agree that the agreed terms will be dealt with in a formal contract there are three possible scenarios:39
a. 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 those terms restated in a form that will be fuller or more precise but not different in effect.
b. The parties have completely agreed all the terms of their bargain and intend no departure or addition to that which their agreed terms express or imply but nevertheless have made the performance of one or more of those terms conditional upon the execution of a formal document.
c. The intention of the parties is not to make a concluded bargain at all unless and until they execute a formal contract.
[78] In Masters v Cameron it was held that in the first two scenarios a binding agreement has been reached and in the third scenario a binding agreement has not been reached. In the first scenario the parties are bound to perform the agreed terms whether or not the formal document is executed. In the second scenario the Court held that the parties are bound to bring the formal contract into existence and then to carry it out.
[79] The reasoning in Masters v Cameron has been applied in relation to settlements made in proceedings under the WC Act in the context of section 92 of the WC Act which prohibits a worker from commencing or continuing a claim for compensation under the WC Act when a work enters into an agreement to settle such a claim. 40 Section 92 of the WC Act is similar in effect to section 399A of the FW Act.
[80] In Nydegger v The GEO Group Australia Pty Limited [2013] WADC 15 it was held that agreements made pursuant to section 92(f) of the WC Act (as occurred in this case) are enforceable where settlement documents were not yet formalised and sent to WorkCover WA for the Directors approval, on the basis that these agreements fall within the second of the scenarios identified in Masters v Cameron.
[81] It is clear from the correspondence filed by Mr Tashayoei that his then legal representative, Mr Foyle, believed a binding settlement agreement had been reached and that he informed both the Arbitrator and Mr Tashayoei accordingly.
[82] I am satisfied that the parties had completely agreed all the terms of their bargain and intended no departure or addition to that which their agreed terms express or implied but nevertheless made the performance of one or more of those terms conditional upon the execution of a formal document.
[83] On the authority of Masters v Cameron the parties are therefore bound to bring the formal contract into existence and to carry out its terms. In this case the formal document was provided to Mr Tashayoei by Mr Foyle for his executive and upon which it was to be presented to the Director of Workcover.
[84] Although it is not clearly articulated in his evidence or his submissions it appears that Mr Tashayoei asserts that he should not be bound by the terms of the settlement agreement because his agreement to those terms was somehow improperly obtained.
[85] Mr Tashayoei appears to assert that his agreement was improperly obtained primarily by his legal representative Mr Foyle. For example:
a. In the email Mr Tashayoei sent to Mr Foyle on 1 April 2021 Mr Tashayoei asserts that he was "totally under pressure and duress from you…". In the same email Mr Tashayoei also says that he was "not fit for that kind of quick decision psychologically". 41
b. In his written submissions Mr Tashayoei alleges he was "psychologically pressured to instantly accept a settlement" by his lawyer. 42
c. In an email Mr Tashayoei sent to Mr Foyle on 8 April 2021, Mr Tashayoei refers to the settlement agreement and contends that he made the decision under Mr Foyle’s “duress and pressure". 43
[86] It is not until he filed in his written submissions Mr Tashayoei first appears to assert that Woolworths was also involved in improperly securing his agreement when he alleges that he was "lured into verbal acceptance by Woolworths and my former lawyer". 44
[87] Other than filing evidence of raising his allegations in relation to Mr Foyle’s conduct with Mr Foyle Mr Tashayoei did not file any evidence to substantiate the allegation that his agreement to the settlement was improperly obtained. Nor did he expand upon his allegations in any meaningful way in his oral evidence.
[88] The evidence is that during the negotiations Mr Ullinger and his instructors were in a separate breakout room from Mr Tashayoei and Mr Foyle and that at no point in the negotiations did Mr Ullinger directly interact with or communicate directly with Mr Tashayoei. 45
[89] Mr Tashayoei acknowledged that he had a choice whether or not to engage in settlement discussions and that he chose to do so rather than proceed to arbitration of his workers compensation claim. 46
[90] Mr Tashayoei conceded that he, through his solicitor Mr Foyle, made the first offer of settlement and that the offer included a term that he resign from his employment with Woolworths. 47
[91] There is no evidence before me to suggest that Woolworths interfered in any way, let alone any improper way, in Mr Tashayoei’s verbal acceptance of the settlement terms.
[92] Nor does the evidence as to the context in which the settlement negotiations took place support Mr Tashayoei’s narrative of a hurried and pressure-filled environment in which he was unable to make proper decisions and/or was susceptible to undue influence from Mr Foyle.
[93] The settlement discussions did not suddenly commence and quickly conclude on 31 March 2021. Settlement discussions had occurred on 22 March 2021 when a pre arbitration conference was held with the assistance of a mediator. Further without prejudice correspondence was exchanged between the parties the following day.
[94] The Workers Compensation Proceedings were listed for arbitration to commence at 10am on 31 March 2021. On the day of the arbitration, Mr Ullinger first met with Mr Foyle, at about 9.30am in the morning. 48 The settlement negotiations that followed endured for between 1 hour 45 minutes and 2 hours.49
[95] The first settlement proposal was made by the Mr Tashayoei (through Mr Foyle). 50
[96] After Mr Foyle put an initial proposal on behalf of Mr Tashayoei to Woolworths there were between seven and eight offers and counteroffers. 51
[97] The first offer included the proposal that Mr Tashayoei resign and the offers and counteroffers which followed focussed on the monetary component of the proposed initial settlement offer and did not revisit or seek to withdraw the offer of resignation. 52
[98] The evidence does not support a finding that Mr Foyle acted improperly or unprofessionally during the negotiations on 31 March 2021 or prior to that date. It appears from the evidence before me that Mr Foyle provided Mr Tashayoei with relevant and appropriate advice to assist him make an informed decision about the settlement terms both prior to and during the settlement negotiations. 53
[99] The evidence is that at an earlier listing during the Workers Compensation Proceedings Mr Foyle formed the view that Mr Tashayoei was not in a fit state to participate in the proceedings and arranged for the proceedings to be adjourned. This evidence suggests that Mr Foyle was mindful of Mr Tashayoei’s mental state and was prepared to stop proceedings if he believed Mr Tashayoei was not fit to continue to participate. The fact that he did not do so on 31 March 2021 tends to suggest that he was not concerned that Mr Tashayoei was unfit to participate. 54
[100] Mr Tashayoei acknowledged under cross examination that he willingly participated in the process of offer and counteroffer. He confirmed that, at the end of the negotiation, he was presented with the option of either accepting or rejecting Woolworth’s final offer. He conceded that it was at that point open to him to say that he did not accept the Woolworth’s offer to proceed to arbitration. 55
[101] Mr Tashayoei also conceded that if Woolworths had agreed to a higher settlement sum he would not now be contesting his separation from Woolworths. 56
[102] Mr Tashayoei says that he comes from a “highly educated family” and is able to read and write in three languages. 57 The evidence of his written communications with Mr Foyle and my observation of him during the conciliation conferences and the Hearing suggest that he has a good grasp of the English language and can clearly and coherently articulate his views. He was able to properly consider proposals put to him during conciliation conferences and was capable of making reasoned decisions about the progress of the proceedings before me without the assistance of a legal representative. This leads me to believe that he was capable of properly considering the proposals put to him by Mr Foyle and providing clear instructions to Mr Foyle in the event that he did not wish to settle the matter.
[103] While there is evidence that Mr Tashayoei has suffered from mental health issues in the past, there is no medical evidence before me to suggest that Mr Tashayoei was medically unfit on 31 March 2021 to participate in the settlement negotiations.
[104] Mr Tashayoei’s evidence is that when he got home on 31 March 2021 he explained to his wife the outcome agreed. It appears that it was at this point Mr Tashayoei suffered ‘buyers remorse’ and decided that he no longer wished to be bound by the settlement which he had verbally agreed.
[105] On the evidence before me I am satisfied that Mr Tashayoei voluntarily entered into a binding settlement agreement on 31 March 2021, a term of which was that he would resign from Woolworths. His separation from Woolworths is therefore not at the initiative of Woolworths nor can it be said that his resignation was forced by a course of conduct engaged in by Woolworths.
[106] In all the circumstances I am not satisfied that Mr Tashayoei was dismissed for the purposes of section 385 of the FW Act. He is not therefore protected from unfair dismissal pursuant to section 396 of the FW Act.
[107] In these circumstances the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. Woolworths’ jurisdictional objection to the Application is upheld and the Application is dismissed.
[108] Accordingly, an order58 dismissing the Application will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Tashayoei, for the Applicant.
Mr Wade, for the Respondent.
Hearing details:
2021
Perth
8 September
Final written submissions:
Applicant, 6 October 2021
Respondent, 22 September 2021
Printed by authority of the Commonwealth Government Printer
<PR733573>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 [2021] FWCFB 268.
3 [2012] FWA 2966, [23] – [26].
4 Digital Court Book, 760.
5 Ibid.
6 Ibid.
7 Digital Court Book, 761.
8 Digital Court Book, 760-761.
9 Digital Court Book, 41-44.
10 Digital Court Book, 461.
11 Digital Court Book,143-144.
12 Digital Court Book, 761.
13 Digital Court Book, 446.
14 Digital Court Book, 762.
15 Digital Court Book, 762, 445.
16 Digital Court Book, 446.
17 Ibid.
18 Ibid.
19 Ibid.
20 Digital Court Book, 446-447.
21 Digital Court Book, 447.
22 Ibid.
23 Digital Court Book, 447, 450.
24 Digital Court Book, 447.
25 Ibid.
26 Digital Court Book, 82.
27 Digital Court Book, 82.
28 Digital Court Book, 453.
29 Digital Court Book, 77.
30 Digital Court Book, 456.
31 Digital Court Book, 459.
32 Digital Court Book, 59.
33 Digital Court Book, 461.
34 Digital Court Book, 462.
35 Digital Court Book, 461.
36 Digital Court Book, 26.
37 Digital Court Book, 82.
38 Digital Court Book, 67.
39 Curtin v Darwin Council (2012) 224 IR 174, Master v Cameron (1954) 91 CLR 353, Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622.
40 Nydegger v The GEO Group Australia Pty Limited [2013] WADC 15.
41 Digital Court Book, 83.
42 Digital Court Book, 87.
43 Digital Court Book,78.
44 Digital Court Book, 87.
45 Transcript of 12 September 2021 at PN128 and 129.
46 Transcript of 12 September 2021 at PN372-377.
47 Transcript of 12 September 2021 at PN378.
48 Transcript of 12 September 2021 at PN121.
49 Transcript of 12 September 2021 at PN125.
50 Transcript of 12 September 2021 at PN130.
51 Transcript of 12 September 2021 at PN131.
52 Transcript of 12 September 2021 at PN399.
53 Transcript of 12 September 2021 at PN363-PN370.
54 Transcript of 12 September 2021 at PN162-PN166 and PN357-PN358.
55 Transcript of 12 September 2021 at PN383-385 and PN422-PN425.
56 Transcript of 12 September 2021 at PN39-PN401.
57 Applicant’s closing submissions at [11] filed on 6 October 2021.
58 Print PR729712
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