FEDERAL COURT OF AUSTRALIA
Mpinda v Fair Work Commission (No 2) [2024] FCA 692
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Details
- AGLC
- Mpinda v Fair Work Commission (No 2) [2024] FCA 692
- Case
- [2024] FCA 692
- Decision Date
CaseChat Overview and Summary
The case of Mpinda v Fair Work Commission (No 2) involved Mr Mpinda, who had his employment terminated by Western Areas. Following the termination, Mr Mpinda sought an unfair dismissal remedy from the Fair Work Commission. Western Areas argued that a settlement agreement had been reached with Mr Mpinda through his legal representative, Mr Banovich, and Western Areas' representative, Ms Wilmot. The primary dispute centred on whether such a settlement agreement existed, the authority of Mr Banovich to bind Mr Mpinda, and the liability of the parties involved.
The court was tasked with determining three main legal issues: whether a binding settlement agreement was made between Mr Mpinda and Western Areas; whether Mr Banovich, acting as Mr Mpinda's legal representative, was negligent in purportedly entering into a settlement agreement without proper authorisation; and whether Western Areas was liable for any breach of a settlement agreement. The court had to assess the validity of the settlement agreement, the scope of Mr Banovich's authority, and the implications of any potential breach.
The court concluded that there was no binding settlement agreement between Mr Mpinda and Western Areas. This determination was based on the lack of clear evidence supporting the existence of such an agreement. The court also found that Mr Banovich was not liable for negligence in making a settlement agreement without proper authorisation from Mr Mpinda. Given that no binding settlement agreement was found, the court deemed it unnecessary to address the issue of Western Areas' liability for any breach of a settlement agreement.
The court's final orders included the determination that no binding settlement agreement existed, that Mr Banovich was not liable for negligence, and that it was unnecessary to address Western Areas' potential liability for breach of a settlement agreement. The matter was listed for further orders, and the costs of the hearing were reserved.
The court was tasked with determining three main legal issues: whether a binding settlement agreement was made between Mr Mpinda and Western Areas; whether Mr Banovich, acting as Mr Mpinda's legal representative, was negligent in purportedly entering into a settlement agreement without proper authorisation; and whether Western Areas was liable for any breach of a settlement agreement. The court had to assess the validity of the settlement agreement, the scope of Mr Banovich's authority, and the implications of any potential breach.
The court concluded that there was no binding settlement agreement between Mr Mpinda and Western Areas. This determination was based on the lack of clear evidence supporting the existence of such an agreement. The court also found that Mr Banovich was not liable for negligence in making a settlement agreement without proper authorisation from Mr Mpinda. Given that no binding settlement agreement was found, the court deemed it unnecessary to address the issue of Western Areas' liability for any breach of a settlement agreement.
The court's final orders included the determination that no binding settlement agreement existed, that Mr Banovich was not liable for negligence, and that it was unnecessary to address Western Areas' potential liability for breach of a settlement agreement. The matter was listed for further orders, and the costs of the hearing were reserved.
Orders
Orders of the court
1. The Court determines the issues ordered to be heard separately by orders made on 8 February 2023 as follows:
(1) Upon the issue of whether the applicant and the second respondent made a binding and enforceable agreement to settle the applicant’s application for an unfair dismissal remedy made under s 394 of the Fair Work Act 2009 (Cth) and lodged with the first respondent on 23 September 2016 (settlement agreement), there was no such settlement agreement.
(2) Upon the issue of whether the third respondent is liable to the applicant for negligence in making a settlement agreement, as the applicant’s agent, without his authority or instruction, the third respondent is not so liable.
(3) Upon the issue of whether the second respondent is indebted to the applicant and (or) liable to the applicant for breach of a settlement agreement for failing to pay a sum due under that agreement, having regard to the determination of issue (1), it is not necessary to determine this issue (3).
2. The matter be listed for further or other orders following the determination of the separate questions at 10.15am (AWST) on 31 July 2024.
3. The costs of the hearing of the separate issues be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons given later, the separate questions should be answered (1) No; (2) No; and (3) Not necessary to answer. I will hear the parties on what further or other orders should be made following the determination of the separate questions and on the question of costs.Background and issues Mr Mpinda was an employee of Western Areas. His employment was terminated by letter dated 2 September 2016. On 23 September 2016, Mr Banovich, as Mr Mpinda’s legal representative, lodged an application for an unfair dismissal remedy in the Commission. In accordance with the usual practice of the Commission, a conciliation conference was arranged and held on 2 December 2016 for the purpose of attempting to facilitate a settlement and resolution of the proceedings in the Commission. Ms Lara Wilmot, a solicitor in the employ of Minter Ellison, attended the conference as Western Area’s legal representative. Ms Rachel Chisholm, an employee of Western Areas, also attended on behalf of Western Areas. Mr Banovich, a director of MKI Legal, attended the conference as Mr Mpinda’s legal representative. Mr Mpinda attended. Ms Anne Mullins attended as the Commission’s conciliator. A French-English interpreter also attended to assist Mr Mpinda, whose first language is French, to communicate with the other attendees. No agreement was made during the conciliation conference. In the days and weeks following the conference there were oral and written communications between Ms Wilmot and Mr Banovich. Western Areas contends that, through those communications and the agency of Ms Wilmot and Mr Banovich, Mr Mpinda and Western Areas made a binding settlement agreement on 9 December 2016, or alternatively no later than 22 February 2017. Western Areas contends that irrespective of whether or not Mr Banovich had actual authority to make a binding settlement agreement on Mr Mpinda’s behalf, in the circumstances, Mr Banovich had apparent or ostensible authority to do so and, therefore, Mr Mpinda is bound by the agreement Mr Banovich made with Ms Wilmot. Western Areas contends that the settlement agreement was made through an oral offer that Mr Banovich made during a telephone conversation with Ms Wilmot on 9 December 2016. That offer was accepted, in writing, by an email from Ms Wilmot to Mr Banovich on 9 December 2016. The principal terms of the agreement were that Western Areas would provide Mr Mpinda with a written reference and pay him $2,000 ex gratia in exchange for Mr Mpinda releasing Western Areas from his unfair dismissal application. Western Areas contends that the provision of the reference and payment was conditional upon Mr Mpinda making a deed of settlement that captured the principal terms and included usual provisions relating to confidentiality and non-disparagement. Western Areas contends that if the settlement agreement was not made and binding on 9 December 2016, then it was made and binding as of 22 February 2017 when Mr Banovich, on behalf of Mr Mpinda, provided Western Areas with a list of the duties Mr Mpinda wanted Western Areas to include in the reference it was to provide Mr Mpinda.
Evidence
Evidence Before The Court
Each of the affidavits tendered in evidence exhibited a number of documents. A number of additional documents were tendered during the cross-examination of Mr Mpinda or separately. The most relevant documents comprise communications involving one or more of Ms Wilmot, Mr Banovich and the Commission or Mr Banovich and Mr Mpinda. The main events relevant to the separate issues took place between November 2016 and April 2017. As already mentioned, none of the witnesses who gave evidence at trial had any real recollection of what was said during telephone or other conversations that had taken place, if at all, seven or so years before the trial. That is completely understandable and in no way reflects poorly on any witness. However, the consequence is that the Court is largely left with only the documentary record from which to determine whether a settlement agreement was made and, if so, on what terms and whether Mr Mpinda positively instructed Mr Banovich to settle on those terms.Some observations about the evidenceOral evidence of communications In Ms Wilmot’s affidavit and evidence-in-chief she gave evidence of telephone conversations with Mr Banovich on 6 December 2016 and 9 December 2016. She said that Mr Banovich had made offers to settle Mr Mpinda’s claim on certain terms during those conversations. The affidavit then reproduces the contents of file notes of those conversations that were exhibited to her affidavit. In her examination-in-chief Ms Wilmot clarified that she had no independent recollection of those telephone conversations and her affidavit was merely a summary of the file notes exhibited to the affidavit. In my view, Ms Wilmot’s evidence of the conversations with Mr Banovich as recorded in her affidavit are reconstructions taken from the contents of her file notes. In Mr Banovich’s affidavit and evidence-in-chief he gave evidence of telephone conversations with Ms Wilmot on 7 and 9 December 2016. In his examination-in-chief he gave evidence to the effect that his recollection of those conversations was based on emails he received from Ms Wilmot on 7 and 9 December that were exhibited to his affidavit. Mr Banovich also gave evidence of conversations with Mr Mpinda on 13 September 2016 and 8 December 2016 and that he had made file notes of those conversations that were exhibited to his affidavit. His evidence-in-chief was that his recollection was based on the file notes. Mr Banovich gave evidence of other conversations with Ms Wilmot or Mr Mpinda and said that his recollection was based on the contents of various documents prepared around the time of those conversations all of which were also exhibited to his affidavit. The extent to which Mr Banovich had any independent recollection of the conversations recounted in his affidavit and evidence-in-chief is not clear. His evidence regarding the nature of his recollection commenced with the following question and answer concerning the conversation with Mr Mpinda on 13 September 2016: So, as you sit here now, do you have any independent recollection of those events that are described in paragraph 8, or is your recollection based only on the affidavit and the file note?---My recollection is based on the file note.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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