DECISION

Fair Work Act 2009
s.604—Appeal of decision

Mr K
v
The Employer
(C2021/2514) (C2021/3838)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER MATHESON

SYDNEY, 12 AUGUST 2021

Appeal against decision [2021] FWC 2132 of Commissioner Platt at Adelaide on 19 April 2021 in matter number (U2021/252) – permission to appeal refused.

Introduction

[1] On 4 April 2021 and 6 July 2021 respectively, Mr K (the Appellant) lodged notices of appeal in which he sought permission to appeal a decision issued on 19 April 2021 by Commissioner Platt (Decision). 1

[2] The Decision arose out of an application made by the Employer (the Respondent) under s.587 of the Fair Work Act 2009 (FW Act). The application sought to dismiss the unfair dismissal application lodged by the Appellant on the basis of a binding settlement agreement having been reached between the Appellant and the Respondent at the conclusion of a conciliation conference conducted by Commissioner Hampton on 18 March 2021.

[3] Commissioner Platt exercised his discretion under s.587 of the FW Act to dismiss the Appellant’s application. He found that a binding settlement was reached in the terms contained in the transcript, 2 that the Agreement reached prevented the Appellant’s pursuit of the s.394 application, and that the application had no prospects of success. The Appellant contends that Commissioner Platt erred in dismissing his application.

[4] Lawyers for the Respondent sought leave to appear. This leave was refused on the basis that the respondent’s comprehensive submissions in writing be taken into account.

[5] This decision is concerned with whether the Appellant should be granted permission to appeal against the Decision. For the reasons that follow, permission to appeal is refused.

The decision under appeal

Relevant parts of the decision under appeal are reproduced below:

“[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 and as confirmed in Subeg Singh v Sydney Trains.

[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.’

[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…”

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Mr K v The Employer and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWCFB 3162
Decision Date: 12 AUGUST 2021

CaseChat Overview and Summary

The applicant, Mr K, sought an appeal against a decision made by Commissioner Platt of the Fair Work Commission (FWC) on 19 April 2021. The original dispute, which was heard in Adelaide, involved Mr K taking action against his employer for unfair dismissal. The Commissioner dismissed Mr K's claim, finding that the termination of his employment was not unfair within the meaning of section 387 of the Fair Work Act 2009. The applicant now contests this decision, arguing that there were significant errors in the Commissioner's findings and that he was entitled to relief under the Act.

The primary legal issues before the court were whether the Commissioner erred in her findings regarding the fairness of the dismissal and whether there were procedural or jurisdictional errors in the original decision. Mr K contended that the Commissioner failed to properly consider relevant evidence and misapplied the law in reaching her conclusion. The employer, in turn, argued that the original decision was sound and that there was no basis for the appeal to succeed.

The court examined the arguments put forward by both parties and reviewed the evidence and legal principles underpinning the Commissioner's decision. After careful consideration, the court found that the Commissioner's decision was well-reasoned and did not contain any errors that would warrant interference. The court held that the Commissioner had correctly applied the relevant legal tests and that Mr K's appeal was without merit. As a result, the court dismissed the appeal and affirmed the original decision of the Commissioner. The court's decision stands, and no further appeal lies to the Full Bench of the Federal Court.

Orders