Mr Gabriele Kisaragi v Theatre Royal Management Board
[2023] FWC 2960
•15 NOVEMBER 2023
| [2023] FWC 2960 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gabriele Kisaragi
v
Theatre Royal Management Board
(U2023/7721)
| COMMISSIONER LEE | MELBOURNE, 15 NOVEMBER 2023 |
Application for an unfair dismissal remedy
On 17 August 2023 Mr Gabriele Kisaragi (the Applicant) made an application in which he sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicant claimed he had been unfairly dismissed from his employment with Theatre Royal Management Board (the Respondent) on 1 August 2023.
A conciliation conference was held with the parties with Ms. Tracey Smith, a staff conciliator of the Fair Work Commission (Commission) on 15 September 2023. At the conclusion of the conference, it appears from the evidence that an agreement was reached and the matter was settled. The Applicant now seeks to have his application for remedy for unfair dismissal heard. The Respondent objects to this on the grounds that it says a binding settlement agreement was reached by the parties. Therefore, the application for unfair dismissal has no reasonable prospect of success and should be dismissed for that reason.
I issued Directions to the parties on 5 October 2023. Both parties filed material in response to those Directions. The Hearing was conducted in person in Hobart on 24 October 2023.
Relevant case law
Parties to a dispute may agree to settle the matter on certain terms. At the conclusion of a discussion as to settlement, the parties may have agreed to resolve the dispute in one of three possible ways. The High Court in Masters v Cameron summarised the position thus:
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 dealt with by a formal contract, the case may belong to any of three cases. It may be one in which 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. Or, secondly, 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. Or, thirdly, 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.
In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common …[1]
A Full Bench of the Commission in Singh v Sydney Trains[2] (Singh) restated these circumstances and added a fourth:
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. 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. (Citations omitted)
Where an agreement between the parties has been reached of the first, second or fourth type described in Singh, that agreement now binds the parties and the original dispute (in this case, the application for remedy for unfair dismissal) is replaced by the agreement.
In Australian Postal Corporation v Gorman (Gorman),[3] Besanko J found that a valid agreement (‘accord and satisfaction’) extinguishes the existing (unfair dismissal) application, with a new cause of action based on the agreement reached. Whether there was an agreement reached is a question of fact to be determined by the Commission. If it is found that there is a valid agreement, the original dispute may be found to have no reasonable prospect of success.
It is therefore necessary for the Commission to determine as a matter of fact if the Applicant and the Respondent reached a binding agreement at the conciliation.
The evidence
Even on the Applicant’s own evidence, it is apparent that a binding settlement agreement was reached at the conciliation on 15 September 2023. The Applicant sent a number of emails to the Commission after the conciliation had concluded. In an email on 18 September 2023 sent to the Commissions UDT email, the Applicant set out that he wanted to “cancel” the agreement. He indicates that he has spoken to a lady at the Commission and “she also explained to me basically I cannot cancel it once we make the settlement and my lawyer also explained it to me too”[4]
On 21 September 2023, a further email was sent to the UDT email indicating “Although I agreed and accept the settlement for conciliation, I really want to cancel the agreement of the condition and the settlement. I know basically I cannot cancel it. My lawyer also explained it to me. I visited FWC and a lady told me to email to this email address if I have a special issue to explain”[5]
The Applicant submits that two additional conditions were added to the terms of settlement document after the conciliation. He expressed the purported extra conditions this way:
“after I accepted, the the other party added two extra conditions that “Confidential of all the information” “Theatre Royal do not accept they did any unfair dismissal”.[6]
However, in the Applicants submissions/witness statement, the Applicant did not press the claim there was no agreement because there were additional conditions. Rather the submission was:
“I would like to make a request to re-open the case.
The reason being, the agreement which was made in the conciliation was contrary to my intention.
There were two circumstances which misled to me to reach this agreement.1. I was under continuous anxiety attacks.
2. The lawyer who supported me gave me wrong advise.”
During the hearing the Applicant confirmed the two issues referred to in his witness statement, that is the claimed anxiety attacks and the claim that his legal advice was incorrect were the two things he relied on to reopen the case.[7]
At the Hearing during cross examination the Applicant conceded that an agreement was reached at the conciliation.[8]
Witnesses for the employer provided evidence that an agreement was reached at the conference.
Mr Wellingtons witness statement indicated that:
“18. Tracey then brought us all back together and reiterated the terms of the agreement.
19. I can’t remember exactly who was asked but I know she did ask that we all agreed before we left the call. I remember that I was asked if I agreed to, and understood the terms of the settlement, and I confirmed that I did.
20. At the end of the conciliation it was my understanding that the dispute was resolved, and that I would sign the paperwork as a formality and make the payment to Akira the next week.”[9]
Ms Minsters witness statement indicated that:
“17. Soon after the conciliator joined both parties together and stated that an agreement had been reached an on the following terms:
a) payment to the Applicant of $858.00, payable within 5 business days of both parties having signed the agreement;
b) mutual non-disparagement;
c) confidentiality;
d) release - no further claims;
e) the Applicant to file notice of discontinuance when the agreement was signed and the $858.00 is paid; and
f) the conciliator would prepare and circulate the terms of settlement using the Commission’s standard settlement agreement to record the agreement between the parties.18. The conciliator stated that she would send a copy of the settlement agreement to both parties, who could sign the agreement in counterparts.
19. The conciliator then asked everyone present, individually, including Mr Kisaragi, whether they understood and accepted the terms she had explained. Everyone, Kisaragi answered, ‘yes’.
20. I considered that a binding settlement had been reached and this matter was resolved.”[10]
I called the Commission staff conciliator, Ms Smith, to give evidence. The conciliator corroborated the evidence of Ms Minster as set out above. The only exception is that the conciliator’s evidence is that it was the Applicant’s legal representative, rather than the Applicant himself who indicated agreement. However, even if that is true, that is of no consequence as there is in no indication from the Applicant that his representative was not authorised to act on his behalf.
Post conciliation
It is apparent from the evidence that after the conciliation and the agreement reached, the Applicant had a change of heart and sought to withdraw from the agreement.
The Respondent remains committed to the agreed settlement and indeed the Respondent’s representative sent a signed copy of the settlement agreement as supplied by the Commission staff conciliator to the Applicant’s representative, Ms Matimba.[11] Ms Matimba sent an email to Ms Minster shortly after that which stated:
“Hi Shay,
Thank you for sending the below through.
I have notified Mr Kisaragi and asked him to return the signed settlement agreement to me by COB Friday.
I will keep you posted on progress, and if we have to close his file I’ll let you know.
Kind regards,
Mieke Matimba”[12]
On or around 20 September 2023 Ms Matimba advised the Applicant that she had ceased acting for him.
At first instance the Applicant in his emails to the CEO on the evening of 15 September 2023 said that he wanted to cancel the agreement because: it is stupid to promise to be confidential: I don’t want to accept the insult for money; it is a spiritual reason.[13]
On 18 September 2023 a further email was sent from the Applicant to the CEO urging him not to pay the settlement money and confirming his “cancel of the condition of settlement”.[14]
In neither of these emails does the Applicant refer to his claimed mental health condition nor the claimed error from his lawyer as a reason for wanting to withdraw from the settlement.
On 18 September 2023 the Applicant sent an email to the Commissions UDT email indicated that he was not in a “standard mental state” at the conciliation[15] Further that while he accepted the settlement “it was my misleading decision from my mental damage”.[16]
The Applicant also asserts that his lawyer “misled me to agree to settle”. This is based on the claim of the Applicant that his lawyer at first agreed that the jurisdictional objection, that the Applicant did not meet the minimum employment period was correct. However, his lawyer then changed their position to indicate it was not necessarily correct but that it was arguable.[17]
On 2 October 2023 the Applicant advised Commissioner Bissett Chambers
“I made up my mind now.
I would like to accept the settlement if they offer me 100hours worth payment which is $2890(gross).
Please understand I ma not playing money game or trying to get best amount to settle.
…
Also, $800 compensate is not good enough for me anyway. My lawyer told me usually about $100hours worth compensation. As I submit my doctor’s report, I already spend more than $600 for the medical fee.
Also, my lawyer suggested $100hours worth compensation.
Anyway, I don’t think you want to hear much about from me.
It is clear, I will accept the settlement if they offer me $2890(gross) If my lawyer did not give me the misinformation I did not accept the settlement after other party refused my lawyer’s suggestion to settle.
The CEO of Theatre Royal Simon Wellington has been my freind for long time. We used to work together in Sydney. I think he understand and Theatre Royal accept to offer me $2890.
If they refuse it then I would like to to go to next step because it was my original plan. They have been making up the story to suck me. I don’t think I should compromise.Please understand and please talk to them.”[18]
The Respondent rejected the further proposal from the Applicant.
The evidence as to the Applicant’s mental health condition
The Applicant provided a medical certificate dated 7 September 2023 which predates the conciliation by eight days. The medical certificate sets out that the Applicant suffers from anxiety and depression. Generally, the report indicates that the condition of the Applicant is improving, that he had worked on coping strategies with the doctor and some medication was prescribed. There is no indication that the Applicant is suffering from a level of mental impairment such that he could not understand the terms of settlement. Nor is there any evidence that the Applicant’s mental state was an issue during the conciliation. Ms McGill the finance manager for the Respondent, who also oversees the payroll was not aware of any mental health issue pertaining to the Applicant. No medical certificates or doctors reports were submitted during his employment.[19]
The Lawyers advice
The Respondent raised a jurisdictional objection being that the Applicant did not meet the minimum employment period. This was because the Applicant was engaged as a casual. The Respondent submitted that there was no clear pattern of rostering and there were long periods where the Applicant did not work. The Applicants claims that his lawyer advised him that the Respondent’s jurisdictional objection that he did not meet the minimum employment period was correct but that she then altered that to say that the jurisdictional objection was arguable. However, it is clear that if the facts asserted by the Respondent as to the Applicants engagement as a casual were found to be true, then the jurisdictional point was at least arguable. The Applicants representatives ultimate advice that the jurisdictional point was arguable could hardly be said to be misleading.
Conclusion
It is clear on the evidence that the parties reached a binding settlement at the conciliation and the terms of that settlement are reflected in the notes of Ms Minster as confirmed by the Commissions staff conciliator. The Applicant accepts that a settlement was reached.
There were no additional conditions added to the terms of settlement. The confidentiality terms had clearly been agreed. The reference at the commencement of the settlement agreement that “1. The Applicant has applied to the Fair Work Commission in case number U2023/7721 alleging the Applicant was protected from unfair dismissal and was unfairly dismissed by the Respondent. 2. The Respondent denies the allegations” are statements of fact included at the commencement of all standard Fair Work Commission settlement agreements, they are not additional conditions.
For the reasons set out above, I am satisfied that the parties reached an agreement on 8 June 2023. The type of agreement reached is of the first kind described in Masters v Cameron — that is, the parties reached finality as to the terms of an agreement, intend to be immediately bound, and proposed restatement of the terms of settlement in a fuller or more precise form but not different in effect.
As to the claims that the matter should be reopened because of the Applicant’s mental state the evidence does not support a finding that the applicant was mentally impaired such that he could not understand the terms of settlement. In any event, whether Mr Kisaragi was under duress at the time he agreed to the settlement of his unfair dismissal application is not a matter that the Fair Work Commission has the jurisdiction to determine.[20]
Finally, the claim that the Applicants lawyers advice was wrong is erroneous and in any event, even if it were, it does not change the position that a binding agreement was reached.
It is apparent from the evidence that a binding agreement was made at the Conciliation. As a binding settlement was reached the original application has no reasonable prospects of success.[21] This is because the binding settlement agreement finalises the application for unfair dismissal.
I am therefore satisfied that the application for remedy for unfair dismissal has no reasonable prospects of success. The application is therefore dismissed pursuant to s.587 of the Act.
COMMISSIONER
Appearances:
G Kisaragi from the Applicant.
S Minster from the Respondent.
Hearing details:
2023.
Hobart:
October 24.
Final written submissions:
Applicant, 11 October 2023.
Respondent, 19 October 2023.
[1] (1954) 91 CLR 353, 360.
[2] [2017] FWCFB 4562 [53].
[3] [2011] FCA 975 [31].
[4] Digital Court Book at page 50.
[5] Ibid at 51.
[6] Ibid.
[7] PN87 – PN97.
[8] PN129, PN132, PN145 and PN146.
[9] Witness Statement of Simon Paul Wellington at [18]-[20]
[10] Witness Statement of Shay Minster at [17]-[20]
[11] Ibid at [28].
[12] Ibid at [SM-6]
[13] Witness Statement of Simon Paul Wellington at [SW-2].
[14] Ibid at [SW-3].
[15] Digital Court Book at page 50.
[16] Ibid at 54.
[17] PN154, PN58.
[18] Digital Court Book at page at 58.
[19] Witness Statement of Joanne Nicole Macgill at [21]
[20] Jackel v Erindael Jersey Stud Pty Ltd Ltd[2022] FWC 3027at [52] citing Chapman v Ignis Labs Pty Ltd T/A Ignis Labs [2020] FWCFB 3849.
[21] Jackel v Erindale Jersey Stud Pty Ltd [2022] FWC 3027 at [45].
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