Mr Yun Zhong Xie v CB Ideal Tapware Pty Ltd

[2023] FWC 1641

[2023] FWC 1641

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Yun Zhong Xie
v

CB Ideal Tapware Pty Ltd

(U2023/2211)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 6 JULY 2023

Application for an unfair dismissal remedy – fabricator – strike-out application – whether binding settlement agreement exists – direction that substantive application be subject of further Member Assisted Conciliation in light of interim decision

[1]       This is an interim decision on a strike out application by the respondent employer.

[2]       On 17 March 2023 Yunzhong Xie (the applicant or Mr Xie) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. Mr Xie is of Chinese descent and speaks limited English.

[3]       The respondent is his former employer CB Ideal Tapware Pty Ltd trading as Consolidated Brass Tapware (CB Ideal Tapware, the employer or the respondent).[1]

[4]       Mr Xie claims that he was summarily dismissed on 27 February 2023 and that his dismissal was harsh, unjust or unreasonable. He seeks reinstatement or compensation.

[5]       An employer response was filed on 17 April 2023. It opposes the application. It contends that Mr Xie was summarily dismissed for serious misconduct and that the dismissal was not unfair. It opposes an order by way of remedy.

Background

[6]       Conciliation was conducted by a staff conciliator on 19 April 2023. The matter did not resolve. Mr Xie was represented by an officer of the Working Women’s Centre during conciliation by the staff conciliator.

[7]       The application was referred to me for hearing and determination.

[8]       A Notice of Ceasing to Act was filed by the Working Women’s Centre on 27 April 2023. Thereafter Mr Xie has been self-represented.

[9]       I conducted a directions hearing on 11 May 2023. I directed that Mr Xie be assisted by a Mandarin interpreter. Relevant for current purposes, I also directed that the parties be provided with a further opportunity to reach a private resolution via Member Assisted Conciliation prior to a merits hearing.

[10]     Member Assisted Conciliation was conducted by Commissioner Platt on 25 May 2023.

[11]     At a directions hearing on 14 June 2023 the respondent reserved its rights to contend that a binding settlement agreement existed between the parties. I issued Further Directions on 14 June 2023 which, inter alia, directed the respondent, if it intends to advance that proposition, to file an application to that effect by 26 June 2023. I also directed Mr Xie to “take reasonable steps to obtain independent advice on a settlement deed sent to him (by the respondent) and copied to the Commission on 14 June 2023”.

[12]     On 23 June 2023 CB Ideal Tapware made an application (strike-out application) for an order under s 587 of the FW Act that the unfair dismissal application be dismissed on the ground that a binding settlement agreement exists between the parties, and for related orders.

[13]     I issued Further Directions on 23 June 2023 concerning the strike out application and the matter generally.

[14]     On 28 June 2023 I granted permission for CB Ideal Tapware to be represented generally in the matter, despite opposition from Mr Xie.[2]

[15]     On 28 June 2023 I took steps to refer Mr Xie to the Commission’s Workplace Advisory Service in order to obtain independent legal advice (Mr Xie had accessed the Service at an earlier date).

[16]     I heard the strike out application by video on 29 June 2023. Mr Xie was self-represented (but assisted by an interpreter). The employer was legally represented.

[17]     I reserved my decision.

[18]     In doing so I vacated scheduled hearing dates (6 and 7 July) and suspended other directions and orders (including a production order of 26 June 2023) pending determination of the strike out application. I did so because if a binding settlement agreement exists then, on well-established Commission authority, that agreement represents the complete answer to the application rendering further determination of no utility.[3]

[19]     On the strike out application, I heard evidence from two persons:

·   James Anthony Spartalis (solicitor for CB Ideal Tapware) on two statements filed in his name[4]; and

·   Yunzhong Xie (applicant) on one (emailed) statement[5].

Facts

[20]     I make the following findings relevant to whether a binding settlement agreement exists between the parties.

[21]     Member Assisted Conciliation was conducted by Commissioner Platt on 25 May 2023.

[22]     Mr Xie was assisted by an interpreter during this conciliation but was self-represented. CB Ideal Tapware was legally represented.

[23]     The conciliation was conducted privately and no record was taken.

[24]     The matter did not settle at the conference. However, at the conclusion of the conference Mr Xie offered to settle for a nominated sum. No discussion occurred concerning accompanying terms. It was agreed that the commissioner’s chambers would prepare a settlement deed and send it to the parties; to Mr Xie for his signature and to the employer for its further consideration of the settlement offer. It was agreed that the applicant’s offer would remain open for one week until close of business on Thursday 1 June 2023.

[25]     Immediately following the conciliation, the associate to Commissioner Platt wrote to the parties as follows:[6]

“Dear Parties,

RE: U2023/2211 - Mr Yun Zhong Xie v CB Ideal Tapware Pty Ltd

Please see attached, the Terms of Settlement.

This Deed contains the final offer put by the Applicant to the Respondent, it has not yet been agreed on.

The Applicant agrees that the offer will remain on the table until close of business Thursday, 1 June 2023. The Applicant will print out and return the signed copy to Chambers as soon as possible.

If the Respondent accepts the Terms of Settlement, they should sign and return the Deed to Chambers by close of business Thursday, 1 June 2023. After this date, the offer will lapse.

The Commissioner will hold the file open until the close of business Friday, 2 June 2023.

Kind regards,

Acting Associate to Commissioner Platt”

[26]     The draft Terms of Settlement were attached to the associate’s email of 25 May 2023. I have redacted the settlement sum in the Deed as it is not necessary to publicly disclose that sum in order to determine this matter. The Deed provided:[7]

“Terms of Settlement Case No: U2023/2211

In the matter of

Mr Yun Zhong Xie
(Applicant)

and

CB Ideal Tapware Pty Ltd
(Respondent)

1.   The Applicant has made an application to the Fair Work Commission for a remedy alleging the Applicant was protected from unfair dismissal and was unfairly dismissed.

2.   The Respondent denies the allegations.

3.   The Applicant and the Respondent agree to fully and finally settle the matter on the following basis:

Payment

3.1.The Respondent will pay to the Applicant the amount of $________ ______________ taxed as applicable, in addition to any other monies previously paid to the Applicant by the Respondent.

3.2.The dollar amount specified in these terms of settlement will be paid by the Respondent within 7 days of the Applicant and the Respondent signing these terms of settlement.

3.3.The dollar amount specified in these terms of settlement will be paid by the Respondent by electronic funds transfer into the Applicant’s nominated financial account.

Statement of Service

3.4.The Respondent will within 7 days of the Applicant and the Respondent signing these terms of settlement, provide the Applicant with a statement of their service with the Respondent, outlining the Applicant’s position, duties and period of service with the Respondent.

Employment Separation Certificate

3.5.The Respondent will provide the Applicant with a revised employment separation certificate within 7 days of signing these terms of settlement. The certificate will not refer to serious misconduct or summary dismissal.

Serious Misconduct

3.6.The Respondent withdraws any allegation of serious misconduct on behalf of the Applicant.

Release

3.7.On the Respondent complying with clauses 3.1 to 3.5 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.

3.8.The Respondent releases and forever discharges the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.

3.9.Nothing in these terms of settlement affects any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.

Confidentiality

3.10.The Applicant and the Respondent will keep the provisions of these terms of settlement confidential, provided that the Applicant and the Respondent may disclose the provisions to their legal or financial advisers or any other person that by law must be informed of the provisions.

Non Disparagement

3.11.Neither the Applicant nor the Respondent will disparage or denigrate the other.

Counterparts

3.12.These Terms of Settlement may be executed in counterparts, meaning that the execution will be complete when each party holds a copy of this Terms of Settlement signed by the other party, even though the signatures of both parties do not appear on the same copy.

Notice of Discontinuance

3.13.By signing these terms, the Applicant discontinues Fair Work Commission unfair dismissal application U2023/2211.

Offer

3.14.This offer will remain open until close of business Thursday, 1 June 2023, and if not accepted in writing by that date, will lapse.”

[27]     The email and the draft Terms of Settlement were sent to both parties and received by both parties that day (25 May 2023).

[28]     Nothing further occurred on the matter between the parties for seven days.

[29]     Mr Xie did not sign the deed as had been requested nor return it to the Commission nor did he correspond with the employer on it.

[30]     However, on 30 May 2023 Mr Xie emailed the chambers of Commissioner Platt as follows:

“About 3.7, 3.8 and 3.9 clauses in the offer whom have nothing to do with the fair dismissal case, and should be related to workers compensation. Please give me a explain why written those clauses in this offer.
Thanks
Younzhong Xie”

[31]     Mr Xie’s email of 30 May 2023 was not copied to Mr Xie to the employer. Nor was it sent by the Commission to the employer. The employer was unaware of it.

[32]     On the afternoon of the seventh day (1 June 2023) at 4.45pm the solicitors for CB Ideal Tapware wrote to Mr Xie and the Commission in the following terms:[8]

“ Dear Mr Xie,

We are instructed to accept your settlement offer.

We advise that the draft Terms of Settlement are acceptable to our client subject to the release including the current proceedings being Case No U2023/2211.

We will provide the revised terms of Settlement shortly.

Kind regards,

James Spartalis Associate”

[33]     Mr Xie did not respond to CB Ideal Tapware or the Commission.

[34]     On 6 June 2023 the solicitors for CB Ideal Tapware wrote to Mr Xie (not copied to the Commission) in the following terms:[9]

“ Dear Mr Xie,

I refer to your correspondence and to the settlement of this matter.

I attach a revised settlement agreement for your consideration.

Please let me know if you have any additions or amendments to the draft settlement agreement.

I look forward to hearing from you.

Kind regards,

James Spartalis Associate”

[35]     The “revised settlement agreement” provided (with changes to the 25 May 2023 deed marked as tracked changes):[10]

“Terms of Settlement  Case No: U2023/2211

In the matter of
Mr Yun Zhong Xie
(Applicant)
and
CB Ideal Tapware Pty Ltd (Respondent)

1.        4 .- The Applicant was employed by the Respondent from about September 2017 to February 2023 (Employment)

2.                 On 27 February 2023, the Employment was terminated in disputed circumstances (Termination)

On 16 March 2023. 1The Applicant has made an application to the Fair Work Commission-for a remedy alleging the Applicant was protected from unfair dismissal and was unfairly dismissed (Application No. U2023/2211) (the Unfair Dismissal Application).

4.- The Respondent denies the allegations in the Unfair Dismissal Application

3. The Applicant and the Respondent agree to fully and finally settle the matter on-the-
following basis: all matters arising out of or connection with the Employment, the Termination and/or the Unfair Dismissal Application (Released Matters) on the following basis:

Payment

3.1. The Respondent will pay to the Applicant the amount of $______________________ taxed as applicable, in addition to any other monies previously paid to the Applicant by the Respondent.

3.2. The dollar amount specified in these terms of settlement will be paid by the Respondent within 721 days of the Applicant and the Respondent signing these terms of settlement.

3.3. The dollar amount specified in these terms of settlement will be paid by the Respondent by electronic funds transfer into the Applicant's nominated financial account.

Statement of Service

3.4. The Respondent will within 7 days of the Applicant and the Respondent signing these terms of settlement, provide the Applicant with a statement of their service with the Respondent, outlining the Applicant's position, duties and period of service with the Respondent.

Employment Separation Certificate

3.5. The Respondent will provide the Applicant with a revised employment separation certificate within 7 days of signing these terms of settlement. The certificate will not refer to serious misconduct or summary dismissal.

Serious Misconduct

3.6. The Respondent withdraws any allegation of serious misconduct on behalf of the Applicant.

Release

3.7. On the Respondent complying with clauses 3.1 to 3.5 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or in connected connection or incidental to, either directly or indirectly, the_with the Applicant's employment with the Respondent, including but-not limited to the cessation of the employment Released Matters.

3.8. The Respondent releases and forever discharges the Applicant from any liability past,
present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment with the Respondent, including but not limited to the cessation of the employment.

3.9. Nothing in these terms of settlement affects any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.

Confidentiality

3.10. The Applicant and the Respondent will keep the provisions of these terms of settlement confidential, provided that the Applicant and the Respondent may disclose the provisions to their legal or financial advisers or any other person that by law must be
informed of the provisions.

Non Disparagement

3.11. Neither the Applicant nor the Respondent will disparage or denigrate the other.

Counterparts

3.12. These Terms of Settlement may be executed in counterparts, meaning that the execution will be complete when each party holds a copy of this Terms of Settlement signed by the other party, even though the signatures of both parties do not appear on the same copy.

Notice of Discontinuance

3.13. By signing these terms, the Applicant discontinues Fair Work Commission unfair
dismissal application U2023/2211.

Offer

3.14. This offer will remain open until-close-of business Thursday, 1 June 2023, and if-net accepted in writing by that date, will lapse.”

[36]     Mr Xie did not respond to CB Ideal Tapware or the Commission.

[37]     Commissioner Platt returned the file to my chambers on  6 June 2023. I listed the matter for report back and directions.

[38]     An officer of CB Ideal Tapware signed the revised settlement terms on 9 June 2023. On 9 June 2023 the solicitors for CB Ideal Tapware wrote to Mr Xie (not copied to the Commission) in the following terms, attaching a signed deed:[11]

“Dear Mr Xie,

Please find attached the signed terms of Settlement.

We look forward to receiving your signed counterpart.

Kind regards,

James Spartalis Associate”

[39]     The signed deed, which was in the same terms as the revised settlement terms of 6 June 2023 but without the tracking, provided:

“Terms of Settlement  Case No: U2023/2211

In the matter of
Mr Yun Zhong Xie
(Applicant)
and
CB Ideal Tapware Pty Ltd (Respondent)

1.                 The Applicant was employed by the Respondent from about September 2017 to February 2023 (Employment).

2.   On 27 February 2023, the Employment was terminated in disputed circumstances (Termination).

3.                 On 16 March 2023. the Applicant made an application to the Fair Work Commission for a remedy alleging the Applicant was protected from unfair dismissal and was unfairly dismissed (Application No. U2023/2211) (the Unfair Dismissal Application). The Respondent denies the allegations in the Unfair Dismissal Application.

4.                 The Applicant and the Respondent agree to fully and finally settle all matters arising out of or connection with the Employment, the Termination and/or the Unfair Dismissal Application (Released Matters) on the following basis:

Payment

4.1. The Respondent will pay to the Applicant the amount of $________ __________________ taxed as applicable, in addition to any other monies previously paid to the Applicant by the Respondent.

4.2. The dollar amount specified in these terms of settlement will be paid by the Respondent within 21 days of the Applicant and the Respondent signing these terms of settlement.

4.3. The dollar amount specified in these terms of settlement will be paid by the Respondent by electronic funds transfer into the Applicant's nominated financial account.

Statement of Service

4.4. The Respondent will within 7 days of the Applicant and the Respondent signing these terms of settlement, provide the Applicant with a statement of their service with the Respondent, outlining the Applicant's position, duties and period of service with the Respondent.

Employment Separation Certificate

4.5. The Respondent will provide the Applicant with a revised employment separation certificate within 7 days of signing these terms of settlement. The certificate will not refer to serious misconduct or summary dismissal.

Serious Misconduct

4.6. The Respondent withdraws any allegation of serious misconduct on behalf of the Applicant.

Release

4.7. On the Respondent complying with clauses 3.1 to 3.5 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or in connection or incidental to, either directly or indirectly, the Released Matters.

4.8. The Respondent releases and forever discharges the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant's employment with the Respondent, including but not limited to the cessation of the employment.

4.9. Nothing in these terms of settlement affects any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.

Confidentiality

4.10. The Applicant and the Respondent will keep the prov1s1ons of these terms of settlement confidential, provided that the Applicant and the Respondent may disclose the provisions to their legal or financial advisers or any other person that by law must be informed of the provisions.

Non Disparagement

4.11. Neither the Applicant nor the Respondent will disparage or denigrate the other.

Counterparts

4.12. These Terms of Settlement may be executed in counterparts, meaning that the execution will be complete when each party holds a copy of this Terms of Settlement signed by the other party, even though the signatures of both parties do not appear on the same copy.

Notice of Discontinuance

4.13. By signing these terms, the Applicant discontinues Fair Work Commission unfair dismissal application U2023/2211.”

[40]     At the directions hearing on 14 June 2023 CB Ideal Tapware referred to the signed deed of 9 June 2023 that had been sent by its solicitors to my chambers on 14 June in advance of the directions hearing. CB Ideal Tapware sought an explanation from Mr Xie as to why the deed had not been signed and sent back.

[41]     Mr Xie advised the directions hearing that he did not agree to the release clauses in the Commission’s deed or the revised deed. He said that he did not wish to release the employer from future claims he may wish to make against it arising from his employment including for personal injury. He did not wish to do so because his unfair dismissal claim (and a related workers compensation claim) concerns the proposition that he sustained fluoride poisoning whilst employed by CB Ideal Tapware.

[42]     I referred Mr Xie to clause 4.9 of the deed which provided:

“Nothing in these terms of settlement affects any claim, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.”

[43]     I informed Mr Xie in general terms concerning the operation of the standard settlement terms in Commission deeds, and that clause 4.9 appeared to address his concern. I suggested and then directed that Mr Xie “take reasonable steps to obtain independent advice on a settlement deed sent to him (by the respondent) and copied to the Commission on 14 June 2023”.

[44]     On 15 June 2023 the solicitors for CB Ideal Tapware wrote to Mr Xie referring to clause 4.9, inviting him to reconsider his position and indicating that it would apply to strike out his application on the ground that a binding settlement agreement exists and seek costs against him if the unfair dismissal application continues to be pressed.

[45]     On 22 June 2023 Mr Xie wrote to the solicitors for CB Ideal Tapware. His email stated:[12]

“Hi

In my letter of 30/05/2023 I clearly stated my disagreement with clauses 3.7, 3.8 and 3.9.

So far no further explanation has been received from the defendant.

Today I explain again. I reject this settlement agreement. The final decision in the case is made by the final hearing.

Kind regards
Yunzhong Xie”

[46]     The solicitors for CB Ideal Tapware replied immediately:[13]

“Dear Mr Xie,

We refer to your email to the Fair Work Commission dated 22 June 2023.

We did not receive your email dated 30 May 2023 as your email was sent to the Fair Work Commission and was not cc'd to us or our client. We again ask that copy us into your correspondence with the Fair Work Commission.

In our email dated 8 June 2023, we submitted the draft settlement agreement ('the draft Settlement Agreement') to you (copy attached for your ease of reference).

Clause 4.7 of the draft Settlement Agreement is on materially the same terms as that which you submitted to us in your offer which was contained in the Fair Work Commission's email dated 25 May 2023. Clause 4.8 and 4.9 of the draft Settlement Agreement are on identical terms as that which you submitted to us in your offer dated 25 May 2023. We attach a copy of the Fair Work Commission's email dated 25 May 2023 for your ease of reference.

In our email dated 9 June 2023, we emailed you the draft Settlement Agreement which was executed by our client (copy attached for your ease of reference).

In our letter dated 15 June 2023 (copy attached for your ease of reference), we explained to you that clause 4.9 of the draft Settlement Agreement expressly preserves your right to pursue a legal claim for any work related injury (ie a workers compensation claim). This is both the ordinary and natural meaning, and the intention, of clauses 4.7 and 4.9 of the draft Settlement Agreement.

Nonetheless, our client will agree to delete clauses 4.7, 4.8 and 4.9 of the draft Settlement Agreement and insert the following:

4.7. On the Respondent complying with clauses 3.1 to 3.5 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or in connection or incidental to, either directly or indirectly, the Released Matters save for and excluding claims under workers compensation legislation or superannuation guarantee charge legislation which according to law cannot be released.

4.8. The Respondent releases and forever discharges the Applicant from any liability past, present of future from all claims, suits, demands, actions or proceedings arising out of or connected with the
Applicant's employment with the Respondent, including but not limited to the cessation of the employment.

9. Nothing in these terms of settlement affects any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work- related injury, illness, disease or death, or under superannuation legislation .

Can you please advise if these amendments are acceptable to you? If so, we will send an amended Settlement Agreement to you for execution.

Alternatively, if you wish to propose some other wording, then we would be happy to consider that and will take instructions from our client.

Can we please have your response by close of business today.

Please let me know if you would like to discuss. We otherwise look forward to hearing from you.
Regards,

Jamie

Jamie Ling | Principal”

[47]     The following day, 23 June 2023 CB Ideal Tapware made the strike out application.

Submissions

CB Ideal Tapware

[48]     CB Ideal Tapware submit that a binding settlement agreement was reached on 1 June 2023 when the respondent’s solicitor informed Mr Xie that an offer set out in draft Terms of Settlement sent by the Commission on 25 May 2023 was accepted.

[49]     CB Ideal Tapware submit that the revised settlement agreement sent by it to Mr Xie on 6 June 2023 did not fundamentally alter the terms of its acceptance of the offer.

[50]     CB Ideal Tapware submit that its indicated willingness to further alter the revised settlement agreement on 22 June 2023 did not fundamentally alter the terms of its acceptance of the offer and in any event was made in a genuine attempt to break the impasse notwithstanding having advised Mr Xie that it considered a binding settlement agreement to exist.

Mr Xie

[51]     Mr Xie submits that there is no binding settlement agreement because whilst he offered a settlement sum on 25 May 2023 he did not propose the release terms set out in the Commission’s draft deed of 25 May 2023 and does not agree with them.

[52]     Mr Xie submits that the fact that he did not sign the draft settlement deed as requested by the Commission is evidence that it did not reflect all agreed terms of his offer.

[53]     Mr Xie submits that his email to the Commission of 30 May 2023 is proof that he did not agree to the terms of the deed, and he advised the Commission of that fact before the employer advised the acceptance of those terms.

Consideration

[54]     Was there a binding settlement agreement?

Legal principles

[55]     This is a question of fact to be decided objectively. It matters not that Mr Xie or CB Ideal Tapware may, for different reasons, have believed a settlement agreement to have (or have not) existed, or had second thoughts about an earlier settlement (if one had occurred) or its terms.

[56]     Leading cases of Masters v Cameron,[14] Baulkham Hills Private Hospital v C R Securities[15] and Singh v Sydney Trains[16] set out well established principles for determining this question.

[57]     A binding settlement agreement exists where there is an offer and acceptance which precisely correspond and where communications between the parties and their conduct expresses, objectively, an intention to make a concluded bargain.[17]

[58]     Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract.[18]

[59]     As noted by a full bench of the Commission in Singh v Sydney Trains:[19]

“[53] 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.

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them.”

Further direction

[60]     I consider it appropriate to publish this interim decision and make a further direction.

[61]     As is evident from the above factual narrative, this matter has already had a lengthy litigation history.

[62]     I have observed that, irrespective of whether a binding settlement agreement exists,  Mr Xie’s apparent concern with the settlement deed of 25 May 2023 (including the two subsequent revised deeds sent by the employer) are the release clauses. Mr Xie does not wish to release the employer from future claims he may wish to make against it arising from his employment including for personal injury. I have observed that the settlement deed(s) appear to preserve that right. I provided that general guidance to Mr Xie at a directions hearing on 14 June whilst directing him to take reasonable steps to obtain independent advice on that question.

[63]     Given the continuing dispute, on 28 June 2023 I took further steps to formally refer Mr Xie to the Commission’s Workplace Advisory Service in order that he again obtain independent legal advice.

[64]     Whilst this strike out decision has been reserved, on 5 July 2023 Mr Xie advised my chambers by email that he has recently met with a solicitor via the Workplace Advisory Service and obtained independent legal advice.

[65]     I have instructed my chambers to return that email to Mr Xie without it forming part of the Commission record as it is not proper for me to be appraised of the advice he apparently received in circumstances where this decision is reserved. Nor is it appropriate for me, in the context of my role as an arbitrator, to advise a party on legal questions. The email was not copied to the respondent, and as it has been returned to Mr Xie for these reasons, it is not appropriate that he do so.

[66]     However, given that:

·there remains substantial value in both parties resolving the substantive application without further cost and expense;

·the aforementioned findings of fact concerning the settlement agreement may provide clarity and be of assistance to the parties in trying to resolve the matter to finality;

·there has apparently been further recent legal assistance provided to Mr Xie from the Workplace Advisory Service; and

·that the merits hearing date and other directions and interlocutory orders and applications have been suspended (including the employer’s costs application) given the dispute over the settlement agreement and whether it exists;

I consider it appropriate to refer the matter back to Commissioner Platt for further Member Assisted Conciliation in light of this interim decision.

[67]     Member Assisted Conciliation allows the parties (including Mr Xie) to speak openly to the Commission about their views on settlement, on the terms of settlement deeds or on advice they may or may not have been given. It also allows the Commission, in the context of a private conciliation process, to express opinions and provide guidance beyond what is appropriate for me as a Member arbitrating this matter.

[68]     However, in order to not allow this matter to drift I will direct that the further Member Assisted Conciliation occur within seven days (by 14 July 2023) and I direct that both parties attend and participate in good faith.

[69]     My decision on the strike out application remains reserved. Should the substantive application not be settled by the further Member Assisted Conciliation which I have directed then a final decision on the strike out application will be made.

Conclusion

[70]     A final decision on the strike out application remains reserved.

[71]     The substantive application will be the subject of further Member Assisted Conciliation by 14 July 2023. The chambers of Commissioner Platt will advise parties of the time and date. Mr Xie will be assisted by a Mandarin interpreter. There is to be no further correspondence by either party with my chambers until such time as the process of further Member Assisted Conciliation is concluded save to advise if the matter has been resolved.

[72]     Via this interim decision, the Commission so directs.

DEPUTY PRESIDENT

Appearances:

Mr Y Xie on his own behalf

Ms E Theodre with Mr J Spartalis with permission on behalf of CB Ideal Tapware Pty Ltd

Hearing details:

Adelaide (by video)

29 June 2023

[1] Permission was granted at the hearing on 14 March 2023 to amend the respondent’s name in these terms

[2] Reasons by Email ‘Chambers – Anderson DP’ 28 June 2023 9.36am

[3] Australian Postal Corporation v Gorman [2011] FCA 975 at [33] per Besanko J: “...a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success”. See also Curtis v Darwin City Council [2012] FWAFB 802 and Lewer v Australian Postal Corporation[2023] FWCFB 56

[4] R1 Statement 26 June 2023; R2 Statement 28 June 2023

[5] A1 Statement via email 27 June 2023

[6] R1 JAS1 Email 25 May 2023 4.59pm

[7] R1 JAS1

[8] JAS2 Email 1 June 2023 4.45pm

[9] JAS3 Email 6 June 2023 1.07pm

[10] JAS3

[11] JAS4 Email 9 June 2023 4.47pm

[12] JAS6 Email 22 June 2023 11.34am

[13] JAS6 Email 22 June 2023 1.40pm

[14] (1954) 91 CLR 353

[15] (1986) 40 NSWR 622.

[16] Singh v Sydney Trains[2017] FWCFB 4562

[17] Ibid at [48] – [49]

[18] Ibid at [51]

[19] Ibid at [53] – [54]

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