Mr K v The Employer

[2021] FWC 2132

[2021] FWC 2132

The attached document replaces the document previously issued with the above code on 19 April 2021.

Redactions have been made to preserve the parties’ anonymity.

Associate to Commissioner Platt

Dated 19 April 2021.

[2021] FWC 2132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr K
v
The Employer
(U2021/252)

COMMISSIONER PLATT ADELAIDE, 19 APRIL 2021

Application for an unfair dismissal remedy – s.587 application – whether binding settlement reached – application granted – substantive s.394 application dismissed.

Summary

[1] This decision deals with an application by the Employer, pursuant to s.587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an unfair dismissal application lodged by Mr K (the Applicant) on 9 January 2021 (the substantive application).

[2] The matter was allocated to me on 22 February 2021. A Directions Conference was held on 3 March 2021 and Directions for the filing of material and the arbitration of the matter were made.

[3] The parties agreed to participate in a member conciliation which was conducted by Commissioner Hampton on 18 March 2021. I am advised that at the conclusion of this conference, the parties requested that Commissioner Hampton inform my Chambers that the matter had settled. Upon receiving this advice, the 3 March 2021 Directions were rescinded.

[4] The parties subsequently exchanged a significant amount of correspondence which indicated that that there was a dispute over the terms of settlement and/or whether a binding settlement had been reached.

[5] On 31 March 2021, I issued Directions requiring the parties to attend a hearing, and that any applications that were sought to be made (and material in support) be provided to the other party and the Commission by 7 April 2021. A portion of Commissioner Hampton’s conciliation conference was recorded, and a copy of the transcript was provided to the parties.

[6] The Applicant did not make any formal application. The Respondent lodged a s.587 application seeking that I dismiss the matter.

[7] At the Hearing the Applicant represented himself. Mr Andrew Short represented the Respondent, with permission being granted on the basis of complexity and efficiency, subject to the matter being conducted as a determinative conference to ameliorate (in part) the fact that the Applicant was unrepresented.

Evidence

[8] At the Hearing the Applicant (consistent with his previous emails) asked that I reinstate him to his pre-dismissal position. I advised him that I was unable to reinstate him without conducting a hearing, determining that he had been unfairly dismissed and then determining that it was appropriate to reinstate him. The Applicant confirmed that his application before me was to set the matter down for hearing.

[9] I advised the Applicant that before I could set the matter down for hearing, I would need to determine the s.587 application lodged by the Respondent.

[10] The Applicant advised that he had received by email the s.587 application and supporting material. I provided the Applicant with a printed copy of the material and asked if he required a short adjournment to review this material. The Applicant declined the invitation.

[11] Mr Short then called Ms Elizabeth O’Keeffe to give evidence. Her statement and attachments were received by the Commission 1. The Applicant then cross-examined Ms O’Keeffe. Ms O’Keeffe’s evidence was that she represented the Employer and had participated in a conciliation conference which had resulted in a binding settlement (the Agreement), which was recorded by Commissioner Hampton. The Agreement was reduced to writing but the Applicant had refused to sign it, initially seeking that one of its terms varied, and subsequently seeking changes including to the financial settlement, and that he also be reinstated. Ms O’Keeffe’s evidence was undisputed.

[12] The transcript of the recorded portion of the conciliation conference appears below:

“THE COMMISSIONER:  I think you can see on the screens that the recording has started.  Just to repeat, having spoken to the parties privately, my understanding is that basis to completely resolve this application and your affairs more generally has been reached.  And I will outline now all the terms and the conditions that I understand have been agreed and have you confirm that to each other, and then we will discuss the mechanics in giving effect to that.

So my understanding is that in the context of the deed, which will record these terms and the ancillary matters associated with this, will be the following: the respondent will pay to the applicant 32 weeks wages, which is $22,824.24, that's gross, less whatever tax is applicable.  That will be paid within 14 days to the applicant.  And Mr K, can I just confirm that - I presume that you would want to receive that into your bank account?  And if so, is the bank account or your financial account the same now as it was when you were employed?

MR K:  It was.  It is.

THE COMMISSIONER:  And that's appropriate?

MR K:  That is appropriate, Commissioner.

THE COMMISSIONER:  Good.  Thank you very much.  All right.  Secondly, the dismissal will be treated as a resignation for all future purposes, effective as of the date of the dismissal.  Thirdly, consistent with that, the respondent will provide to the applicant a statement of service, which will record the length of the service.  So the start and the conclusion, including that it concluded with a resignation.  But it will also outline the nature of the positions held by yourself, Mr K, including that from time to time, you acted in a supervisory capacity.

The deed will also record mutual confidentiality as to the terms of the settlement.  It will record that the applicant releases the respondent from all claims arising from the employment and the dismissal.  And whilst we haven't talked about this, that, I presume, would need to exclude superannuation and workers' compensation, because a deed can't effectively cover those matters.  And of course, it will also confirm the obligation to discontinue the unfair dismissal application.

So perhaps, Ms Hollings, I should just confirm the caveat that I have mentioned about the release.  Is that a correct assumption?

MS HOLLINGS:  Which caveat, sorry?  That the - - -

THE COMMISSIONER:  That the release excludes workers' compensation and superannuation.

MS HOLLINGS:  Agreed, yes.

THE COMMISSIONER:  Yes.  So Mr K, we didn't discuss that.  But you appreciate that the deed can't - it can't release either parties' obligations for that matter arising from workers' compensation and superannuation.  So that is just a matter of legal form.  There's nothing inconsistent with the agreement arising from that.  That is actually to your benefit, of course.

So they are the terms that I have noted.  They are the terms that I have communicated between you.  And my understand is that that then represents a resolution.  So Mr K, can you confirm that is the case?

MR K:  I confirm that's the case, Commissioner.

THE COMMISSIONER:  Thank you very much, Mr K.  And from the respondent's point of view?

MS HOLLINGS:  Commissioner, can I - sorry.  Can I just confirm one minor - probably a minor point?  We say that with payment within 14 days - - -

THE COMMISSIONER:  Of the signing of the deed.

MS HOLLINGS:  Thank you.  Yes.  Of our receipt of the signing of the deed, yes.

THE COMMISSIONER:  All right.  Well - - -

MS HOLLINGS:  But then yes, that's agreed.

THE COMMISSIONER:  Yes, all right.  Mr K, I did explain it was 14 days from the deed, so I don't think there is anything that arises from that, providing of course both parties - well, and particularly the respondent, deals with the deed as quickly as possible and gets that to Mr K.  So that's the presumption that was made there.  All right.  Mr K, are you comfortable with that?

MR K:  Yes.

THE COMMISSIONER:  Yes, good.  So - - -

MS HOLLINGS:  Commissioner - my apologies, Commissioner.  I just wanted to confirm, just for clarity purposes, that it will be a release agreement as opposed to a deed of release.  Just for the purposes of reporting.

THE COMMISSIONER:  Mr K, that makes no difference at all to its legal effect.

MR K:  Yes.

THE COMMISSIONER:  But if that's the preference of the respondent, then there is no difference in terms of its enforceability one way or another.  There may be - I am not sure what the implications are, but look, it is a release agreement, of course.  Deed is a formal term, and it's probably not an accurate description, in any event.  It's just a loose sort of lay description of what is - yes, it's a release agreement, but it is a binding contract, whatever label you wish to put on it.  Binding on both parties.

MR K:  I understand.  Thank you, Commissioner.

THE COMMISSIONER:  All right.  Ms Hollings, you're comfortable with that?

MS HOLLINGS:  Yes.  Thank you, Commissioner.

THE COMMISSIONER:  Well, then as I have explained to both parties, at this point then you have a binding agreement, which is now enforceable.  Obviously it requires that to be conferred into the release agreement for the purposes of posterity.  That is recording it for future purposes.  But you already have, in effect, a legally binding understanding.  So my understanding is the respondent, are you going to provide a deed?  And if so, how quickly can you do that?

MS HOLLINGS:  Yes, Commissioner.  We will provide a deed likely through Ms O'Keeffe - from Ms O'Keeffe to Mr K, I would expect.  And Ms O'Keeffe, you can confirm, if you would like.  But I anticipate that we will be able to get that to Mr K tomorrow.

MS O'KEEFFE:  Yes, that's suitable from our end.

THE COMMISSIONER:  Just to be clear, and tell me if I am wrong.  I just want to make sure there's no loose ends here at all.  My understanding is that you would send a deed which reflects these terms to Mr K by email with an attached document.  Is that how you will do it?

MS O'KEEFFE:  Yes, Commissioner.

MS HOLLINGS:  Yes.

THE COMMISSIONER:  And then, Mr K, I don't know your circumstances, but the normal course would be for you to sign the deed.  So if you have - do you have access to a printer that can print it out, and also create a PDF after the event?

MR K:  Yes, I do.

THE COMMISSIONER:  Good.  That's all right.  I don't want to make any assumptions here.  So the normal course is that you would sign the deed, turn it back into a PDF, and email it back.

MR K:  I can do that.

THE COMMISSIONER:  So that's the normal way this would be done.  And in terms of the discontinuance of the matter, look, there is effectively two ways that can be done.  One is the parties - if the deed has in it that this does discontinue the unfair dismissal, then the - effectively - Ms O'Keeffe, I think you're still on the line.  Ms O'Keeffe, again we will go to your office.  Your office could supply the completed deed to my office and back to Mr K.  And if you were to supply that, the signed deed, then the commission would take that as a discontinuance and close the file, and obviously Platt C would - - -

MR K:  Platt.

THE COMMISSIONER:  - - - obviously close all the proceedings, and you know, vacate the arrangements.  So that might be the easiest way.  Or alternatively, a notice of discontinuance can be provided to the commission separately.  It makes no difference at all.  The agreement you've made is already binding and has that effect.  So look, it's largely a matter of form and convenience.  I am open to suggestions.  Mr K, I suspect it doesn't make a difference to you?

MR K:  I'm good.

THE COMMISSIONER:  Yes, all right.  So look, the suggestion I would make is that the deed have in it that in consistent with its terms, the applicant does discontinue the unfair dismissal application.  And in that context, if the completely signed deed is forwarded to my office as well as returned for Mr K for his reference, then I will treat that as a discontinuance.

MR K:  Understood.

MS O'KEEFFE:  It's Ms O'Keeffe here.  Thank you, Commissioner.  I think that will work for the respondent, and we'll include that in the deed.  That will also make it easier for Mr K.

THE COMMISSIONER:  Well, exactly.  I am just trying to make it easier for everyone, and particularly Mr K, given that he is obviously - you know, doesn't have representation here.  So I think that is the best way to do that.

Look, the other thing that I will do is I will advise Platt C of the resolution.  And I can do that because, as I have said, we have gone to the bother of recording and putting in place all of the processes that are necessary.  Obviously I won't have the signed deed before the Commission formally closes the file, but I will advise him of the resolution.  And I do that because, of course, arrangements have been made.  And I am just, as I am speaking, just checking the directions.  Yes, so arrangements have been made for parties to start filing material from the 30th.  So I would ask you to attend to the deed and sign the deed as quickly as possible.  But in any event, I will let him know for his diary that the matter has been resolved, and he can expect the formal closure of the file in the near future.

I think, unless there's any questions arising from that, Mr K?

MR K:  No.  Thank you, and Platt C, and the courts.

THE COMMISSIONER:  Not at all.  Ms Hollings and Ms O'Keeffe and Ms Stephenson, any questions from yourself?

MS HOLLINGS:  No thank you, Commissioner.

MS O'KEEFFE:  No thank you, Commissioner.

THE COMMISSIONER:  No, all right.  Look, the only thing I want to do is this.  I just do want to say, in joint comment with what I've said to the parties privately, look, this is a matter that I think called out for a resolution everyone's interest, because in a sense, the alternative was not a good one for anyone.  So I do want to commend both parties on the approach that has ultimately been taken here.  And I congratulate you on the resolution, and I have every confidence (indistinct) all parties in good stead.  Mr K, I wish you all the best for the future.

MR K:  Thank you.

THE COMMISSIONER:  And [the Employer], I also wish the employer and the employees at the store all the best for the future as well.

MR K:  Hear, hear.

MS HOLLINGS:  Thank you very much, Commissioner.

THE COMMISSIONER:  Thank you.  Yes.  The commission will be adjourned.  Good afternoon, all.”

ADJOURNED INDEFINITELY [2.10 PM]

…

[13] The Applicant then gave evidence. Whilst the Applicant generally accepted the accuracy of the transcript, he contended that the written version of the Agreement did not reflect the Agreement reached.

Submissions

[14] The Employer’s submission is summarised as follows:

•  A binding settlement was reached between Mr K and the Employer at the conclusion of the conciliation conference on 18 March 2021, and the Employer is prepared to honour those terms.

•  The question as to whether a binding agreement exists is a matter of fact. 2

•  The evidence before the Commission supported its contention that the Agreement was a binding settlement as described in Masters v Cameron. 3

•  Section 587 gives the Commission power to dismiss Mr K’s application in these circumstances and it is appropriate to do so.

[15] At the conclusion of the Employer’s submissions, I offered Mr K the opportunity to have an adjournment, and this offer was declined.

[16] The Applicant rejected the proposition that a binding settlement had been reached.

Law

[17] The principles to be adopted in determining if a binding settlement has been reached can be found in a review of Masters v Cameron 4 and as confirmed in Subeg Singh v Sydney Trains.5

[18] Masters v Cameron established three ‘types’ of agreement that can be entered into by parties engaging in a settlement. Of most relevance in this case is when:

‘….the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to 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 no different in effect.’ 6

[19] This majority go on to say that such an agreement:

“….((binds) the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not…” 7

[20] In Subeg Singh v Sydney Trains, the Full Bench found that whilst the issue of whether the parties have reached agreement on the essential terms of the contract may be a relevant factor in determining whether a binding agreement has been reached, the overarching question is:

“…whether there is an offer and acceptance which precisely correspond and whether the communications between the parties and their conduct expressed, objectively, an intention to make a concluded bargain.” 8

(emphasis added)

[21] In essence, if the parties to a matter reach finality and agree on the essential terms of the bargain, and their communication and conduct indicate that objectively, they intend to be immediately bound by those terms, the law recognises that they have reached a binding settlement, even if they propose to restate the terms in a fuller and more precise form that are not different in effect.

[22] A review of the transcript alone clearly establishes that an agreement was reached at the conciliation conference chaired by Commissioner Hampton. None of the additional information before me suggests otherwise.

[23] It is clear that the parties agreed that:

•  Mr K would be paid $22,824.24 gross (to be taxed in accordance with the law);

•  the net amount would be paid into Mr K’s bank or financial account with 14 days;

•  the employment would be regarded as ceasing by way of resignation;

•  a statement of service would be provided by the Employer;

•  the terms of settlement would be confidential; and

•  Mr K released the Respondent from all claims arising from the employment and the dismissal except for workers compensation and/or superannuation claims.

[24] Mr K’s acceptance of that agreement is evident from the following exchange with Commissioner Hampton:

“So they are the terms that I have noted.  They are the terms that I have communicated between you.  And my understand is that that then represents a resolution.  So Mr K, can you confirm that is the case?

MR K:  I confirm that's the case, Commissioner.”

[25] I find that the parties reached a ‘binding settlement.’ There is no suggestion that it was the product of fear, force or fraud.

[26] As a result of my finding that a binding settlement had been reached in the terms contained in the transcript, and that inter alia the Agreement prevents the continued pursuit of Mr K’s s.394 application, I find that the substantive application has no prospects of success, and I exercise my discretion pursuant to s.587 to dismiss that application.

[27] In my view, the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should implement the agreed terms without delay.

[28] In order to preserve the mutual confidentiality agreed between the parties, I have exercised my powers pursuant to s.594 of the Act to de-identify the names of the Applicant and Respondent.

[29] A copy of the Order 9 reflecting my decision will be issued today.

COMMISSIONER

Appearances:

Mr T. K the Applicant.

Mr Andrew Short (of counsel) on behalf of the Respondent.

Hearing details:

2021.

Adelaide.

9 April.

Printed by authority of the Commonwealth Government Printer

<PR728751>

 1   Exhibit W1

 2   Curtis v Darwin City Council [2012] FWAFB 8021

 3 (1954) 91 CLR 353

 4 (1954) 91 CLR 353.

 5   [2017] FWCFB 4562.

 6   Masters v Cameron at [9].

 7 Ibid at [10].

 8   Subeg Singh v Sydney Trains at [62].

 9   PR728750