Mr Patel Bhaveshkumar v Woolworths Group T/A Woolworths Limited

[2017] FWC 4875

[2017] FWC 4875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Patel Bhaveshkumar
v
Woolworths Group T/A Woolworths Limited
(U2017/5058)

COMMISSIONER JOHNS SYDNEY, 22 SEPTEMBER 2017

Application for an unfair dismissal remedy. Jurisdictional objection. Cooling off period, counter offer, rejection of conciliated settlement.

[1] On 11 May 2017, an application pursuant to s.394 of the Fair Work Act 2006 (the Act) for an unfair dismissal remedy was lodged by Mr Patel Bhaveshkumar (Applicant). A conciliated agreement was reached subject to a 3 day cooling off period. During this period the Applicant communicated to the Conciliator that he was not content with the current terms of settlement and requested that the payment for settlement be increased. This correspondence was not interpreted as a withdrawal by the Conciliator and the matter was not referred to arbitration. The matter was closed. The Applicant did not sign the conciliated settlement, and requested that the matter be re-opened on the basis that he had withdrawn from the conciliated settlement within the 3 business day cooling off period. Woolworths (Respondent) made a jurisdictional objection on the bases that that the Applicant had not withdrawn within the cooling-off period, and that the parties had entered a binding agreement.

[2] During telephone mentions/directions on 6 September 2017 the parties agreed that this matter does not involve contested facts, and both parties consented to the matter being determined ‘on the papers’.

Background

[3] The matter was the subject of conciliation on 8 June 2017, the parties during this conciliation came to an ‘agreement’ to fully and finally settle the matter on the bases that; the Respondent pay the Applicant $4, 500 gross, within 7 days of the agreement being signed, and that both the Applicant and Respondent release each other from liability, arising out of or connected with the Applicant’s employment with the Respondent.

[4] On 8 June 2017 the parties were sent an email by the Conciliator as follows:

As discussed, a three day cooling off period now applies. I will hold the file for three business days to allow you (the parties) time to consider the agreement reached at conciliation. Unless I hear from either of the parties by Wednesday 14^th June 2017 the matter is resolved in the terms attached and the file will be closed.

[5] On 9 June 2017 10.08 am (First Email), the Applicant sent an email to the Conciliator requesting $6,000 from the settlement, in this email the Applicant claimed that his dismissal was unfair; he detailed his personal circumstances and the impact of the dismissal. The Conciliator responded by informing the Applicant that negotiations had concluded and that he should only communicate with the Conciliator if he wished to proceed to arbitration

[6] Later the same day on 9 June 2017 1.14 pm (Second Email), the Applicant sent another email to the Conciliator, again requesting that the Respondent pay him $6, 000 in order to settle the matter. In response the Conciliator informed the Applicant that if he wished to proceed to arbitration, he should give clear instructions to that effect.

[7] On 10 July 2017 (the Phone Call), the Applicant rang the Conciliator with complaints about the $4, 500 payment for settlement, the Applicant informed the Conciliator that he had in-fact requested not to proceed with the settlement. Later that day the Applicant forwarded the email he sent to the Conciliator on 9 June 2017 (discussed above at [4]). The Conciliator directed the Applicant to the option of filing a complaint about the proceeding, and informed the Applicant that the role of the Conciliator in the matter had concluded.

[8] On 13 July 2017 (Third Email), the Applicant sent the same email he sent to the Conciliator on 9 June 2017 (discussed above at [4]) to the Melbourne Registry. The Applicant also called the Fair Work Commission helpline, advising that he had sent an email to the Melbourne Registry and also that he wanted the file re-opened as he was not willing to settle on the current terms.

[9] The Respondent raised a jurisdictional objection against this matter proceeding to arbitration.

Submissions

[10] The parties were directed to file submissions on the jurisdictional objection, those submissions are summarised as follows:

Respondent’s submissions

[11] The Respondent raised a jurisdictional objection on the grounds that the parties entered into a binding settlement on 8 June 2017 during conciliation.

[12] The Respondent does not contest that the Applicant had corresponded with the Commission during the cooling off period; it submits that this correspondence does not amount to a withdrawal from the settlement.

[13] The Respondent submits that the First Email sent by the Applicant was only an enquiry into the terms of settlement and to the possibility of an increased amount. In response the Conciliator conveyed that there was no possibility of further negotiation, and if the Applicant wished the matter be referred to arbitration, he would have to advise the Commission as such.

[14] The Respondent submits that the Second Email did not include instructions to refer the matter to arbitration, and it cannot be interpreted that the Applicant expressly or impliedly withdrew from the settlement agreement.

[15] Further, the Respondent argues that if the Applicant had any intention to withdraw from the settlement, he would have done so after the Conciliator’s response to the Second Email, which informed the Applicant that if he intended on withdrawing from the settlement and having the matter referred to arbitration, that he should express so in clear terms.

[16] The Respondent submits that the settlement agreement became binding on the parties on 14 June 2017.

[17] The Respondent also notes that the Applicant is yet to sign the agreement, and argues that this fact does not reduce the binding nature of the agreement between the parties, the Respondent make this argument with reference to the High Court’s Decision in Masters v Cameron. 1

[18] Finally the Respondent makes the submission that the application should be dismissed in accordance with s 587 of the Act, stating that the Commission has broad discretion to dismiss under this section, and that the Commission should dismiss the application on the bases that the agreement was binding on the parties and that the Applicant failed to withdraw within the 3 business day cooling off period.

Applicant’s submissions

[19] The Applicant submits that through the First and Second Emails, he did respond within the 3 business day cooling off period to withdraw from the settlement.

[20] The Applicant also submits that he is willing to settle the matter for $6, 000. In this submission, he detailed his personal circumstances and the impact the dismissal has had on himself and his family.

Consideration

[21] The 3 business day cooling off period is applicable in this matter as both parties at conciliation were self-represented, and did not waive the right. The cooling off period expired on 14 June 2017.

[22] It is agreed that both the First and Second emails sent by the Applicant to the Conciliator on 9 June 2017 were within the cooling off period.

[23] The question to be determined is whether either of those emails constituted a withdrawal.

[24] It is important to note that the Applicant has English as his second language, this was clear to me during the telephone mentions and directions I had with the parties, from the email correspondence sent by the Applicant, and expressed by the Applicant himself over the phone to my Chambers. The Respondent on the other hand is a large, sophisticated organisation with a dedicated Human Resources Department.

[25] It is also important to note, that the Fair Work framework including the Act and the Regulation, do not prescribe a method or a form for withdrawing from a conciliated agreement, during the cooling off period.

[26] In the First email the Applicant expresses a counter-offer, the Conciliator responds by informing the Applicant that negotiations had expired and that the Applicant should only communicate further should he wish to proceed to arbitration. In reply the Applicant again presses his counter-offer. The Conciliator instructs the Applicant that he must express his withdrawal in clear terms.

[27] The cooling off period was introduced to allow unrepresented parties to seek advice and discuss the proposed settlement with family and friends. It appears from the correspondence that this exactly what the Applicant did; he consulted with his family on the outcome of the conciliation, and came back within the cooling off period with a counter-offer, clearly in rejection of the terms of settlement.

[28] This position is later affirmed by the Phone Call, made by the Applicant to the Conciliator, stating that he intended with the First and Second Emails to withdraw from the agreement, because he was not happy with the $4,500 payment, he requested a $6, 000 payment (discussed above at [7]). The Applicant sent a Third Email, this time to the Melbourne Registry, again asserting his position for a $6, 000 settlement (discussed above at [8]). Finally, the Applicant in a phone call to the Commission’s Help Line, again asserted his position against the terms of settlement, and requested that the Commission re-open the file.

[29] I am satisfied that the Applicant in the First and Second Email put a counter offer, which rejected the terms of settlement, which is tantamount to withdrawing from the conciliated settlement.

Conclusion

[30] I am satisfied that the Applicant withdrew from the conciliated agreement within the 3 business day cooling off period.

[31] Having made this conclusion, I find that the agreement between the parties does not fall within any of the three classes of agreement detailed in Masters v Cameron, 2 and I find that it is not appropriate to exercise the Commissions discretion to dismiss this application under s 587 of the Act.

[32] I refer the matter back to the Commission’s Unfair Dismissal team for further programming.

COMMISSIONER

 1 (1954) 91 CLR 353.

 2 (1954) 91 CLR 353.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR596204>