Ms Tammy Gill v Rio Tinto Aluminium Limited T/A Rio Tinto Weipa
[2017] FWC 2903
•7 JULY 2017
| [2017] FWC 2903 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tammy Gill
v
Rio Tinto Aluminium Limited T/A Rio Tinto Weipa
(U2016/9988)
COMMISSIONER HUNT | BRISBANE, 7 JULY 2017 |
Application for relief from unfair dismissal – application to dismiss pursuant to s.399A or s.587 – parties entered into a settlement agreement.
[1] Ms Tammy Gill has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Rio Tinto Aluminium Limited T/A Rio Tinto Weipa (Rio Tinto) was harsh, unjust or unreasonable.
[2] Ms Gill commenced employment with Rio Tinto on 6 August 2007 and was summarily dismissed on 15 July 2016. At the time of her dismissal she was employed as a Mine Operator at Rio Tinto’s Weipa Mine. Rio Tinto submits Ms Gill failed to meet the safety and performance expectations of her role in respect of two incidents occurring on 23 and 24 October 2015.
[3] The parties participated in a conciliation conference before a Fair Work Commission (the Commission) staff conciliator on 16 September 2016; however the matter was unable to be resolved. The matter was subsequently allocated to me for determination.
[4] Ms Gill was represented by Hall Payne Lawyers instructed by the Construction, Forestry, Mining and Energy Union (CFMEU), and material was filed on her behalf on 17 November 2016. Rio Tinto was represented by Ashurst and it filed its material on 22 December 2016. The application was listed for arbitration by me on 21 – 23 February 2017 in Cairns.
[5] On 6 February 2017 the parties participated in a member assisted conference (MAC) by telephone before Commissioner Booth.
[6] Mr Luke Tiley of Hall Payne Lawyers appeared at the MAC on behalf of Ms Gill. Mr Stephen Smyth – District President, CFMEU also participated in the MAC, as did Ms Gill.
[7] Mr Ian Humphreys of Ashurst appeared at the MAC on behalf of Rio Tinto and was accompanied by Ms Ellen Mayr – Solicitor, Ashurst, Ms Fiona Forrest – Principal Advisor – Employee Relations, Rio Tinto and Ms Krissy Burton – Human Resources Advisor, Rio Tinto (the Rio Tinto Party).
Purported settlement
[8] Rio Tinto’s position is that the parties reached a binding settlement agreement at the conclusion of the MAC. The settlement agreement was as follows:
- Ms Gill to be paid by Rio Tinto the gross amount of $18,000;
- Ms Gill’s termination to be treated as resignation;
- Ms Gill be provided by Rio Tinto with a statement of service;
- The application be discontinued; and
- Ms Gill to enter into a deed of release prepared by Ashurst in the usual terms which included mutual confidentiality, mutual release and mutual non disparagement. (Settlement Agreement).
[9] Ms Gill disputes that the Settlement Agreement was reached and urges the Commission to progress her application to arbitration.
[10] Hall Payne Lawyers and the CFMEU considered that the Settlement Agreement was reached on the afternoon of 6 February 2017, and as a result of the disagreement about a settlement agreement being reached between the parties with Ms Gill, Hall Payne Lawyers ceased acting for Ms Gill from 8 February 2017.
[11] On 17 March 2017, Rio Tinto made an application to the Commission requesting Ms Gill’s unfair dismissal application be dismissed pursuant to s.399A(1)(c) of the Act, or in the alternative, under s.587 of the Act (Application to Dismiss).
[12] Rio Tinto’s Application to Dismiss was heard before me on 10 May 2017 in Brisbane. Ms Gill attended by video-link from Weipa and gave evidence on her own behalf. Witness statements of Ms Mayr and Ms Forrest were accepted into evidence, and they were not required for cross-examination. The Commission ordered the attendance of Mr Tiley and Mr Smyth for the purposes of giving evidence about the purported Settlement Agreement.
[13] The purpose of this decision is to consider Rio Tinto’s Application to Dismiss.
Issue of legal privilege
[14] It will become clear in this decision that Ms Gill waived her right to claim legal privilege over correspondence and discussions she had with Hall Payne Lawyers. 1 Any legal privilege that exists relevant to the conversations and correspondence between the CFMEU and Hall Payne Lawyers was not waived by the CFMEU.2
Duress
[15] It was made clear to the parties that the Commission would not be dealing with any allegations Ms Gill may have that if an agreement was entered into, it was under duress of her representatives, the CFMEU and Hall Payne Lawyers.
[16] The issue of duress of an applicant to validly enter into a settlement with a respondent in the Commission is a matter to be tested, if Ms Gill wishes, before a court of competent jurisdiction.
Timeline of events
[17] The following facts are generally uncontested between the parties. It is noted that Mr Tiley, Ms Mayr and Ms Forrest all kept contemporaneous notes of the discussions held during the MAC, and all notes have been accepted into evidence of the Commission.
[18] The MAC commenced with all parties for Ms Gill and the Rio Tinto Party on a conference call. As the MAC progressed, the parties were separated for the purpose of entering into negotiations. It is of note that Ms Gill, Mr Tiley and Mr Smyth were on separate telephone lines during the call, and at times Mr Tiley would separate from Ms Gill and Mr Smyth for the purpose of communicating without prejudice offers to Commissioner Booth for her to then have conversations with the Rio Tinto Party.
[19] The parties engaged in negotiations for a period of about 3.5 hours. The negotiations were facilitated by Commissioner Booth and a number of offers of settlement were exchanged. Ms Gill was only joined to all of the parties at the beginning of the MAC. Following the initial discussions, she did not again participate collectively with the Rio Tinto Party or Commissioner Booth.
[20] It is not disputed that the following exchange of offers occurred:
● Mr Tiley communicated to Rio Tinto an opening offer of 20 weeks’ pay ($30,769.23);
● Rio Tinto made a counter offer of $12,307.23 (representing 8 weeks’ pay); and
● Mr Tiley made a counter offer of 15 weeks’ pay ($23,075).
[21] The following matters are contested between Ms Gill collectively against the Rio Tinto Party, Mr Tiley and Mr Smyth.
[22] It is Mr Tiley’s evidence that following Ms Gill’s offer of 15 weeks’ pay, and after Commissioner Booth has spoken with the Rio Tinto Party, Commissioner Booth telephoned Mr Tiley to communicate Rio Tinto’s next offer: $12,307.23 together with relocation expenses of approximately $3,000; or alternatively $15,000. Mr Tiley’s evidence is that Commissioner Booth indicated that she thought if she could speak further with the Rio Tinto Party, she might be able to have them agree to a settlement of $15,000 plus the relocation expenses. It is Mr Tiley’s evidence he was being asked by Commissioner Booth if this was a position he thought he could get Ms Gill to reach agreement. Mr Tiley communicated to Commissioner Booth that he thought there would be utility in trying to get Ms Gill to this position.
[23] Mr Tiley’s notes reflected that he had then spoken with Mr Smyth regarding the prospect of potentially improving Rio Tinto’s offer to $15,000 plus relocation expenses. This phone call was in Ms Gill’s absence. Mr Smyth agreed with Mr Tiley that would be a ‘good offer’. 3
[24] Mr Tiley received a further call from Commissioner Booth, informing him that the Rio Tinto Party had communicated a willingness to settle for $15,000 plus relocation costs. The termination would be considered a resignation, Rio Tinto would provide Ms Gill with a statement of service, and a deed of release would be executed.
[25] Mr Tiley, Mr Smyth and Ms Gill are in agreement a telephone call between the three of them occurred. The offer of $15,000 and relocation costs was proposed by Mr Tiley to Ms Gill, which she then rejected. It is Ms Gill’s evidence she considered it to be insulting to be forced to move from her home in Weipa. She informed Mr Tiley she was ‘never leaving Weipa’. 4
Ms Gill’s recollection of settlement reached
[26] At this point in the negotiations, Ms Gill says she was overwhelmed. She was home with three of her young, primary school-aged children. They had arrived home from school at approximately 3.00pm, and according to Mr Tiley’s notes this conversation was occurring after 4.30pm. Her children were trying to talk to her, and she was attempting to hush them so she could consider what was being put to her. The negotiations had been occurring for a lengthy period of time.
[27] It is Ms Gill’s evidence that she was informed by Mr Tiley and Mr Smyth that if she did not reach a negotiated settlement she would lose her representation from the CFMEU and Hall Payne Lawyers, and her prospects of success at arbitration would not be high. Ms Gill claims Mr Tiley informed her the negotiations had been going on for a very long period and they were lucky to have so much of the Commission’s time in endeavouring to reach a settlement.
[28] It is Ms Gill’s evidence Mr Tiley stated that he would make an offer to Rio Tinto, such offer was to be left open to Ms Gill to consider over the next 24 hours. Ms Gill’s evidence is that Mr Smyth agreed that this would be best for Ms Gill. Ms Gill’s evidence is that it was clear to Mr Tiley and Mr Smyth that she was not in a fit state to be agreeing to any terms. 5
[29] Ms Gill is of the view she instructed Mr Tiley to make an offer of 18 weeks’ pay plus $3,000 relocation costs, together with the termination effected as a resignation, a statement of service and a draft deed prepared. It is her evidence Mr Tiley informed her and Mr Smyth a short while later that he had made such an offer. When Ms Gill reminded Mr Tiley she insisted upon having a right to reconsider the offer over a 24 hour period, Ms Gill states Mr Tiley said, “I could go back and confirm this.”
[30] Ms Gill’s evidence is Mr Tiley left the telephone call and then returned shortly thereafter to confirm that the Rio Tinto Party had accepted a 24 hour cooling off period for Ms Gill’s benefit.
[31] Mr Tiley stated he would confirm in writing to Ms Gill the settlement terms reached. 6
[32] In cross-examination of Ms Gill, it was put to her that she had not been clearly listening when Mr Tiley and Mr Smyth were attempting to give her advice late in the negotiations. The exchange was as follows: 7
Mr Humphreys: Now can I put to you that that is a fair characterisation and that you were not clearly listening when you were receiving advice from Mr Smyth and Mr Tiley?
Ms Gill: That’s true because after I rejected the second offer that was made by Rio, I had already stated that I no longer wanted to proceed with any further negotiations. I was annoyed. I was very upset.
Mr Humphreys: And you were not clearly listening to what was being put you?
Ms Gill: I didn’t want to listen.
Mr Humphreys: You did not want to listen?
Ms Gill: No, because I didn’t want to go into any negotiations or an agreement. No, I wasn’t listening.
[33] When asked by me why she thought Mr Tiley’s contemporaneous notes would not contain the reference to Mr Tiley purportedly having a further conversation with the Rio Tinto Party and Commissioner Booth regarding Ms Gill having a 24 cooling-off period, Ms Gill answered: 8
“Yes, I don’t believe he did, Commissioner, because I believe an agreement had already been made. I’m very suspicious of it. Very, very suspicious for numerous reasons. He did come back and he stated to me that he said “Yep” and he rattled off 18 and this, this, this and that. I was not listening. I was waiting for the 24 hours. He didn’t say it. He could’ve offered a dollar. I didn’t – I wasn’t listening. I wanted to hear that 24 hours because he said he would go away and request that they keep their offer open for 24 hours. He came back and he didn’t mention that so immediately I said “What about the 24 hours?” That’s when he said – he paused and he said “Oh, I can go back and confirm”. I said “Yes, you have to”. That was my one and only clear instruction of the day. Even the first two offers were not my instructions. They were agreeing to his recommendations. This one was a definite instruction and the only instruction that I made as an instruction from myself, not as a recommendation.”
Mr Tiley’s recollection of settlement reached
[34] Mr Tiley’s notes are numbered by order and reference T/I and T/O for ‘telephone in’ and ‘telephone out’. There are 17 distinct notes across five pages. There is no reference to Mr Tiley having gone back to make a further clarification, as suggested by Ms Gill, regarding Ms Gill’s insistence that she be provided with a 24 hour cooling off period.
[35] At item 13 of Mr Tiley’s notes, he records the ‘telephone in’ conversation he had with Commissioner Booth:
“T/I FWC
Got there
Relocation – 3 months
[details of relocation, moving sizes etc.]
15k gross
Resignation
SoS [statement of service]
Deed / w.comp”
[36] At item 14 of Mr Tiley’s notes, he records the following:
“T/O TG + SS [telephone out, Tammy Gill and Stephen Smyth]
Rejected
Not moving
Offer 18k gross”
[37] At item 15 of Mr Tiley’s notes, he records the following:
“T/O FWC
Updated 18k and resignation
We will draft the cost of drafting the deed”
[38] At item 16 of Mr Tiley’s notes, he records the following:
“T/I FWC w. IH (Ian Humphries)
Offer accepted
18k gross to app
Resignation
Sos [statement of service]
Prepare deed to Tiley; usual terms (within 48 hours)
Discontinuance
LMT: mutual terms as to confidentiality, non-disparagement, release and bar”
[39] At item 17 of Mr Tiley’s notes he records the following:
“T/O TG + SS [Tammy Gill and Stephen Smyth]
Update end 5pm”
[40] In questioning from Rio Tinto at the hearing, it is Mr Tiley’s evidence that references to a 24 hour period were for Ms Gill’s offer of $18,000 to be made available to Rio Tinto to consider for a period of 24 hours from when it was made on 6 February 2017. Ultimately the final offer Mr Tiley made on behalf of Ms Gill of $18,000 was immediately accepted by Rio Tinto.
[41] Mr Tiley disagreed with the proposition advanced by Ms Gill that the 24 hour period was a cooling-off period for her benefit. 9
[42] The following exchanged occurred between Ms Gill and Mr Tiley in Ms Gill’s cross-examination of Mr Tiley:
Ms Gill: I didn't discuss the $18,000 in that question. It was specifically you stated - because I was quite upset and I made it very adamant that I wasn't leaving. So then you said, "Hang on, I'll go and see if they'll be willing to bump it up to $3,000 because you're not leaving so let's get it in money value." Is that what you said to me?
Mr Tiley: I suggested to you that if you were not willing to accept the offer that had been made of $15,000 plus relocation costs it may be possible to settle the matter on the basis that the value of the relocation costs of approximately $3,000 was added to the $15,000 that was already on the table and I suggested to you that that would be a good counter-offer for you to advance and you instructed me to do so.
[43] Ms Gill put to Mr Tiley in cross-examination that she was not in a fit state to be negotiating a settlement of her unfair dismissal claim. Mr Tiley responded: 10
“I wasn’t aware of those distractions that you had with you because I wasn’t with you. You presented to me as being capable of providing instructions and taking advice. Had you presented to me as not having that capacity then I would not have allowed the conciliation to proceed.”
[44] Mr Tiley was not aware Ms Gill claimed to have been asking her children to leave her alone while she was on the telephone to him. 11
[45] With reference to the issue of the 24 hour period, the following questions were put by me and answered by Mr Tiley:
Cmr: So you're sure that 51 - sorry, 53, 54 and 55 of Ms Gill's statement did not occur?
Mr Tiley: Yes, because by the time - as I understand the statement, Ms Gill is talking about the conversation during which I confirmed to her what the terms of the agreement were. That's the conversation which I've recorded in my final note at the very bottom of page 5. It was the - it is the final attendance described on my file note and it was the final attendance I made that day. I did not go back again to the respondents and then to Ms Gill and had I done so, obviously that would have been recorded in my note.
Cmr: Alright, so you're sure about that but you're not as sure with respect to paragraph 49 and 50?
Mr Tiley: Well, only because 49 and 50 seem to be talking about an offer from the respondent to the applicant and the offer which ultimately gave rise to this agreement was an offer from the applicant to the respondent.
Cmr: Yes, but there's a suggestion here from Mr Gill - Ms Gill that Mr Smyth was supporting her, saying yes she needs the 24 hours?
Mr Tiley: We were all of one mind that the offer should be left open for 24 hours. Left open for acceptance for 24 hours.
Cmr: How do you know that that was understood by Ms Gill?
Mr Tiley: Because it was - she instructed me to put that, put the offer in that form. Whether that was understood or not by Ms Gill is obviously a difficult proposition and I can't give evidence about what she understood or didn't understand.
Cmr: Well, that's the issue before the Commission. With an unsophisticated litigant saying to the Commission that "I think I had 24 hours to think it over and I was given that assurance" and you understanding that to mean that it's 24 hours for the respondent to consider it
Mr Tiley: Well, there was never any mention of a cooling off period in the way that Ms Gill now describes it. The words to this effect were used, "We can tell the respondent that that offer is left open for a period of 24 hours". I considered those words to be self-explanatory and Ms Gill did not tell me that she did not understand them or anything to that effect. Obviously had she done so, I wouldn't have advanced the offer unless she was comfortable with its terms. 12
…
Cmr: This case may turn on at paragraph 50 and 49 what was said between you and Ms Gill and Mr Smyth, so I need to be certain which way I go there as to what the applicant understood to be the terms of settlement?
Mr Tiley: Again all I can give evidence about, Commissioner, is the instructions that I was provided and what I did with those instructions. I can't speak for what Ms Gill understood but… I can only take instructions from my client if they have the capacity to do so and it is not prudent for me to seek or act upon an instruction from a client if they obviously don't understand the effect of that instruction, because it affects their rights.
Cmr: Alright, so who do you think raised the 24 hour issue, you or Ms Gill?
Mr Tiley: My recollection is that I raised it in the tactical way that I described earlier, because to say that "This offer is open for 24 hours" would have the effect of concluding the conciliation and giving the impression to the respondent that it was the final offer which Ms Gill was prepared to make.
Cmr: All right, do you think she understood that it was open to the respondent for 24 hours?
Mr Tiley: I certainly at the time did, yes. 13
[46] Ms Gill put to Mr Tiley the following: 14
Ms Gill: Is there a reason why - can you refresh me why did - if you made that request to Ashurst and the respondents why is there no mention of it, one in your handwritten notes and two, the statements of Fiona Forrest and Ellen state that there was not one mention or utter of any 24 hours on their side that was relayed to them? They have no idea of anything in relation to that 24 hours?
Mr Tiley: Well, the proposition that in item 14 on page 5 you gave me instructions to advance as an offer was not advanced by me to the respondent or its representatives, but rather it was advanced by me to the Commissioner in the conversation described at item 15 on page 5.
Ms Gill: So you're stating that the Commissioner did not relay that suggestion of yours?
Mr Tiley: I don't know whether the Commissioner relayed that or not, but I relayed it to the Commissioner because those were my instructions. Whether the Commissioner by oversight or otherwise did not convey that to the respondent, I don't know because I wasn't part of those conversations. But ultimately because the offer was accepted so quickly by the respondents, the 24 hour issue obviously fell away.
[47] Mr Tiley’s evidence is that at all times while acting for the CFMEU and for Ms Gill, he was alert to, and acted consistent with his duties as a solicitor of the Supreme Court of Queensland. 15
Evidence of Mr Smyth
[48] Mr Smyth’s evidence is that Ms Gill’s final instruction to Mr Tiley was to settle the application on her behalf for the payment of $18,000, with the termination to be treated as a resignation, and Rio Tinto to provide to her a statement of service. The offer made on Ms Gill’s behalf, communicated to Commissioner Booth was that the offer was to remain open for 24 hours for Rio Tinto to consider. 16
[49] The following was put by me to Mr Smyth: 17
Cmr: Alright, it's Ms Gill's evidence that it was getting late in the day and Mr Tiley was becoming impatient with her and saying that she needed to provide an answer, and then Mr Tiley said in order to keep the conversation going he could request that the respondents' final offer be left open to the applicant for 24 hours. I'm not sure that makes sense but effectively Ms Gill is saying that she understood that she would keep her offer open for 24 hours. What's your understanding of the 24 hours issue?
Mr Smyth: Yes that's not - again the 24 hours, I believed it was for Rio to go away and consider, because it's correct it was getting quite late and we'd been on the phone for quite a few hours off and on. And a lot - I'll be honest, there was a lot of emotion and I understand that, particularly when you - in the circumstances when you've been terminated.
Mr Smyth: But my - again from my recollection on the day, that the settlement - we'd reached a settlement in the sense of what would be put back as an offer and then Rio would go away and consider that. Because obviously on the back of that there'd have to be deeds agreed to and those sort of things drafted. So that's how I - as I said, I was in transit so I was (indistinct) the phone, on my mobile. I wasn't in my office so that - and to be honest, I took some notes afterwards, which we addressed in a letter to Ms Gill a couple of days later just to clarify from the union's perspective of where we seen the matter get to and how it settled.
Cmr: Alright, Ms Gill says that you were becoming aware of this concern she had and that you said to Mr Tiley "Yes, the 24 hours is a must" because Ms Gill says it was becoming clear that she was not in a state to be agreeing to anything?
Mr Smyth: I can't recall I exactly said that. I do agree that Ms Gill wasn't - she was obviously in a fairly emotional state but there was stages through there where she actually also said that she just wanted the matter gone, she wanted it done, she wanted it settled. So - and I'll go back to the point, Commissioner, that you know, from our - from the union's perspective was that we wanted to make sure she come out of this terrible situation with something, not nothing, in the circumstances. So at the end of the day it's obviously a decision made by the individual, in our terms obviously the member, on the matter before them at the time. So - but that's all I have on that point, Commissioner.
[50] In cross-examination by Mr Humphreys, Mr Smyth stated the following: 18
“….my position, my view, after those discussions on the afternoon of the conciliation, that a settlement had been reached.”
[51] And further: 19
Mr Humphreys: Yes, and your view in relation to the 24 hours is that the 24 hours was provided to Rio Tinto to allow it to consider the offer which was made on instructions on behalf of Ms Gill. That's correct?
Mr Smyth: Yes, that's how I understood it. Yes.
Mr Humphreys: Yes, and in the event Rio Tinto didn't need the 24 hours, they agreed to the proposal pretty much straight away?
Mr Smyth: That's correct, and that's how my understanding was they'd go away and consider it, yes.
Mr Humphreys: Yes, but in the event they agreed pretty much there and then?
Mr Smyth: Yes they agreed straight away and that that wouldn't be required. Correct.
Correspondence regarding the purported settlement
[52] Noting Ms Gill waived legal privilege, the correspondence between Ms Gill and the CFMEU and Hall Payne Lawyers was admitted into evidence. Some of the correspondence is addressed below.
[53] Following the conference call, Mr Tiley sent an email to Ms Gill at 5:11pm of the same day. The email stated: 20
“Dear Tammy
We confirm that during the course of the telephone conciliation in FWC today you agreed to resolve your matter on the following bases:
● The payment of $18,000 gross to you;
● The termination be treated as a resignation;
● The company will give you a statement of service confirming the resignation etc; and
● The proceeding will be discontinued with no order as to costs.
The above terms will be set out in deed of settlement, which Ashurst will draft and we will review, which deed will contain mutual terms as to confidentiality, non- disparagement, release and bar.
As a result of the settlement the hearing will obviously not go ahead. James will inform your witnesses of that fact tomorrow. Please do not discuss the settlement with them (or anyone else) because of the confidentiality term.
Separately to the settlement the Union will action the safety concerns that you have about the mine which you have been discussing with Steve Smyth. The Union will discuss those directly with you (i.e. not through me).”
[54] At 12:54am on 7 February 2017, Ms Gill sent a lengthy email in response to Mr Tiley, in which she raised various matters including the merits of her application and the settlement discussions. The pertinent excerpts of the email are as follows: 21
“Hi Luke
I was told it’s a 24 hour opening. Also $18000 is only 8 weeks pay, I thought it was higher amounts of weeks agreed to. Could you re address it with me please.
…
I was in great distress yesterday and felt rushed and pressured.
…
AND 18 000 IS NOT THE AMOUNT OF WEEKS THAT WE AGREED ON.
I truly would like the opportunity to have the matter heard. $18000 does not compare to the amount of loss I have accrued since I chose to speak up for myself and win a fair treatment claim (which is a workplace right)…”
[55] At 1:23am on 7 February 2017 Ms Gill sent the following email to Mr Smyth: 22
“Hi Steve,
Could you correct me again. I was clearly not listening when all the figures were being spoken (Sorry was very distressed at what was happening).
Was the settlement agreement set at 22 weeks pay plus cost of relocation in monetary value the settlement agreement?
22 weeks being the full 26 weeks compensation minus the 4 weeks of lieu payment already made?
I have attached my separation certificate… which shows what the 4 weeks in lieu was worth. I don’t think $18 000 covers the weeks that was agreed to.”
[56] At 10:51am on 7 February 2017, a cancellation notice was issued to the parties from the Chambers of Commissioner Booth with respect to the hearing of the application in Cairns. The notice stated, “The matter has been resolved therefore the above listings have been cancelled”.
[57] It is apparent a telephone call between Ms Gill, Mr Smyth and Mr Tiley occurred on the morning of 7 February 2017.
[58] At 11:29am on 7 February 2017, Ms Gill wrote to Mr Smyth: 23
‘Hi Steve
Could I get confirmation that I no longer will have representation from Hall and Payne [sic], and the Union if I don’t make a settlement with Rio Tinto.
As you know I do not believe that I made a final offer as it was told to me by Luke whilst you were on the phone that the offer was left open for 24 hours in order to allow me to think that offer through.’
[59] Mr Tiley responded to Ms Gill’s email at 12:10pm, stating: 24
“Hi Tammy (and others)
I will leave Steve to answer your question about further representation on behalf of the Union.
For the record I quite strongly disagree with the 2nd paragraph of your email. However I accept that there is no point in the 2 of us arguing about that now – you heard what I had to say this morning about the negotiations and the settlement and your inability to now proceed with the case.
We hope that you will reconsider the settlement as it is the best outcome for you in the circumstances and in our view you will end up with nothing if you do not accept it.”
[60] At 12:30pm on 7 February 2017, Ms Gill sent an email to Commissioner Booth’s chambers, which stated: 25
“Dear Commissioner,
I had a court hearing for an unfair dismissal and under representation yesterday I was told I had to make an offer. I was told it was recommended by Commissioner Booth.
…
I accepted that I could lose representation.
But because I was told by Luke, with Stephen Smyth on the phone “Tammy its that time of day, we have to give Rio a figure”, Luke then stated “let me put in my recommendation just to keep the conversation going and I will ask if they would allow it to remain open for 24 hours”. This is when I said ‘I need that 24 hours’, I was not wanting to settle. I could not say the words. But due to the offer remaining opened for the 24 hours, and due to Luke stating that ‘Tammy its that time of day, we have to make an offer’. I then agreed to place an offer but only with the terms of it being allowed to remain open for the 24 hours to change my mind if need be). Was what I was mislead to believe.
I have been blind sided.
I wanted to have my matter heard.
What happened. Please I never agreed to $18 000. In terms of figures I believed it was 18 weeks and 24 hours to sleep on it as stated by Luke from Hall Payne.
Please help me to understand how my matter could so easily have been cancelled.”
[61] Mr Smyth sent a letter to Ms Gill on 8 February 2017 to advise her that the CFMEU would be ceasing any representation of her in the unfair dismissal proceedings, and as a consequence, Hall Payne would also cease to act for her. The letter stated:
“I write to advise you that the Construction, Forestry, Mining and Energy Union (“CFMEU”) will be ceasing any representation of you in relation to the unfair dismissal proceedings. As a consequence of our decision we also note that Hall Payne Lawyers will shortly cease to act for you.
I understand that the decision to cease representation may be disappointing to you. However, in the circumstances the CFMEU considers that continued representation and funding of the proceedings is no longer viable or appropriate. I note that there has been some significant exchange of correspondence and a number of telephone discussions with you in relation to the settlement and the proceedings. The CFMEU has made this decision in light of the following matters:
1. The CFMEU considers that a settlement was reached as a result of the conciliation conference and settlement discussions. I note that you have received advice from Hall Payne Lawyers regarding that matter, including in relation to the effect of the settlement that was reached. Hall Payne Lawyers have expressed a view that you are legally and ethically bound by the settlement, a view which we endorse.
2. The CFMEU considers that it cannot continue to provide ongoing representation in circumstances where there exists a significant disagreement between yourself and the CFMEU as to the content of the settlement discussions.
3. The CFMEU considers that it cannot continue to provide representation in circumstances where you have taken unilateral steps in sending correspondence to the Fair Work Commission, in the absence of seeking advice and/or despite being provided advice.
4. The CFMEU considers that it is in light of the above matters, as well as your very limited prospects of success in the substantive matter as detailed in prior written advice from Hall Payne Lawyers, that continuing to fund the proceedings is not appropriate.
I wish to assure you that the decision to cease representation and funding of the proceedings has not been reached lightly. I also wish to assure you that the CFMEU is committed to providing the best possible representation to its membership and that I believe we have done so on this occasion. In the circumstances, and based on a full consideration of issues raised and legal advice, the CFMEU believes that settlement of your matter, on the terms agreed to by you, was the best possible outcome.
…
The CFMEU will not take any further action in relation to the proceedings.
…”
[62] At 1:54 on 8 February 2017, Ms Mayr sent an email to Mr Rowan Anderson of the CFMEU attaching the deed of release. Rio Tinto was aware Hall Payne Lawyers had ceased to act for Ms Gill at this stage, however had not been notified of Ms Gill’s concerns with respect to the Settlement Agreement.
[63] On 13 February 2017, Commissioner Booth conducted an ex parte conference with Ms Gill and on invitation from the Commission, Mr Smyth and Mr Tiley agreed to participate in the conference. It should be noted that Rio Tinto was still not aware Ms Gill was disputing the purported Settlement Agreement.
[64] On 14 February 2017, Ms Gill wrote to the Commission affirming her view that she believed no settlement was reached and requested the matter be referred back to Commissioner Hunt for arbitration.
Legislation
[65] Section 399A of the Act provides:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
[66] Section 587 of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[67] Having received the application at [11] on 23 March 2017, I issued directions which required Rio Tinto to address whether s.399A(1)(c) of the Act had been satisfied, including whether the purported Settlement Agreement had concluded. Rio Tinto had not acted on the terms of the Settlement Agreement as a result of the proceedings. As a result, I directed Rio Tinto to give consideration to whether an application under s.587 of the Act would be more appropriate in the event it was found the Settlement Agreement was not concluded.
Rio Tinto’s submissions
[68] Rio Tinto submitted that Ms Gill had accepted that the Settlement Agreement was reached on 6 February 2017. 26 Rio Tinto rejects Ms Gill’s position that Hall Payne Lawyers did not have instructions to enter into the Settlement Agreement.
[69] Rio Tinto is intent on giving effect to the Settlement Agreement, such that if the Commission determines the Settlement Agreement was validly entered into, payment of $18,000 will be made to Ms Gill in accordance with the terms.
[70] Rio Tinto submits that it did not make payment to Ms Gill of the $18,000 because it is a term of the Agreement that a formal deed of release reflecting the Settlement Agreement be executed between the parties. The deed of release at clause 2.4 provides that Rio Tinto will pay to Ms Gill the agreed sum of $18,000 (gross) within seven days of Ms Gill executing the deed of release and providing Rio Tinto with a signed Notice of Discontinuance.
[71] Rio Tinto submitted that the matter at hand can be distinguished from the matter of Granas v Berkeley Challenge Propriety Ltd T/A Spotless 27 where the terms of the agreement reached between the parties provided that Spotless would pay Mr Granas the sum of $3,593 and that Mr Granas ‘would discontinue his application when the terms have been complied with’. That is, Mr Granas’ obligation to discontinue his application only arose after Spotless had paid him the agreed sum.28
[72] Rio Tinto considers Ms Gill’s obligation to discontinue the application arose on 6 February 2017 following the Settlement Agreement being reached. Rio Tinto stated that at all times it has communicated its intention to honour the terms of the Settlement Agreement.
[73] Rio Tinto contended that Ms Gill’s failure to discontinue the proceedings constitutes an unreasonable act or omission. Further, in light of Ms Gill’s conduct following the MAC, which involved Ms Gill making a number of distasteful Facebook posts about Rio Tinto and its representative, it was not reasonable for Rio Tinto to pay to Ms Gill the agreed sum without the assistance of the Commission.
[74] Rio Tinto presses the Application to Dismiss on the basis that, to the extent there is a conflict between Ms Gill and Mr Tiley about what instructions were provided by Ms Gill to Mr Tiley, the Commission should prefer Mr Tiley’s evidence. Mr Tiley is a solicitor of the Supreme Court of Queensland and has an employment law specialist accreditation from the Queensland Law Society. 29
[75] Ms Gill’s assertion that she provided Mr Tiley with instructions to put an offer of 18 weeks and not $18,000 as a final offer is rejected by Mr Tiley. 30 It is also Mr Tiley’s evidence that the final offer that Ms Gill instructed him to put did not contain a 24 hour cooling-off period or a cooling-off period for her benefit at all.
[76] Rio Tinto submitted that Mr Tiley’s evidence is this regard was clear, consistent and unambiguous; and conversely the evidence of Ms Gill with respect to the MAC has been vague, unclear, inconsistent and at times incoherent.
[77] Ms Gill’s evidence regarding the first two offers which were put by Mr Tiley to Rio Tinto changed throughout the hearing. Initially Ms Gill noted that she agreed for Mr Tiley to make those ‘first two offers’. 31
[78] Ms Gill then put to Mr Tiley that she never gave him any instructions to follow during the MAC. 32 Following this, Ms Gill again stated to Mr Tiley during cross-examination, “Okay, so we’ve confirmed that yes, I did give you two instructions”33. In cross-examination Ms Gill’s position changed again, where she noted, “Even the first two offers were not my instructions. They were agreeing to his recommendations”.34
[79] Ms Gill finally conceded that she did provide Mr Tiley with instructions by agreeing to his recommendations. 35
[80] Ms Gill gave evidence that during the MAC she provided Mr Tiley with instructions to make an offer of 15 weeks compensation, 36 which was rejected by Rio Tinto.
[81] Ms Gill’s evidence was to the effect that while the earlier offer made by on her behalf of 15 weeks’ compensation was rejected, the Settlement Agreement that was reached at the conclusion of the MAC was for an amount of 18 weeks’ pay plus $3,000 relocation costs. 37 Ms Gill was not able to explain how, in her view, the settlement offers put by Mr Tiley to Rio Tinto on Ms Gill’s behalf went from 20 weeks compensation to 15 weeks’ compensation and then back up to 18 weeks compensation plus relocation costs.38
[82] Rio Tinto relies on the following exchange the Commission had with Ms Gill during the hearing: 39
Cmr: All right, Ms Gill, I've asked Mr Tiley to leave the hearing room for a very short period because I need to alert you that there is going to be some trouble with the Commission - my preliminary view is - with the Commission accepting your assertion that you were at 18 weeks, given that you had instructed earlier an offer of 15 weeks, that being the amount of $23,000 something. So there is going to be questions that I put to you and which the respondent might put to you but I just want to flag that issue with you now, so that we don't spend an inordinate amount of time with Mr Tiley because on the evidence before the Commission you had in your second offer - you had gone from 20 weeks to 15 weeks and then to now assert that you were at 18 weeks doesn't make much sense at this point in time.
Ms Gill: No, it doesn't to me either, Commissioner, because I didn't make the offer. I'm just - when Mr Tiley came back to me with the two offers, one being the relocation, to be honest, all I heard was that they were offering me to get out of town and they gave me three months to do it. That's how I viewed it. That's how I heard it.
Cmr: Well, I just want to alert you - we'll deal with this later in your evidence but I want to alert you that to get from 15 weeks which you had earlier put at about $23,000 to then say that the Commission should find that you instructed Mr Tiley to settle for 18 weeks and they were your clear instructions, that does not make - - -
Ms Gill: Yes, 18 weeks with - yes.
Cmr: Well, it doesn't make much sense, Ms Gill.
Ms Gill: I did not instruct him to return with anything. He stated to me that he would accept - "Hold on, I'll just go and find out if we can turn it into $3,000." That's where he left me; right there. That's the last time I heard from him for quite some time.
Cmr: Well, I indicate that the Commission is struggling with that, because you had earlier offered 15 weeks. That was your offer, of 15 weeks so why would after all of these many hours you be under the impression that it was 18 weeks plus $3,000 relocation costs?
Ms Gill: I did hear 18. I've always put 18 - when I say 18 in my handwritten notes it's always 18 weeks, me - I put 18 in brackets, meaning weeks, then thousands. I do recall 18, the figure 18, and I thought that was coming from 15 weeks which yes, I did offer, and then the last I heard from Tiley was he was going away to see if he could get $3,000 on top of the 15 weeks. That's where I was left at.
[83] During Ms Gill’s cross-examination of Mr Tiley, Ms Gill stated that once the offer from Rio Tinto which included relocation allowance was communicated to her she “ceased all interest” and informed her representatives that she did not want to “further negotiate” and was “not interested in entering into a settlement agreement”. 40
[84] Rio Tinto submitted, on Ms Gill’s own statement she was not clearly listening when she was receiving advice from Mr Smyth and Mr Tiley because after she rejected the second offer that was made by Rio Tinto, she no longer wanted to proceed with any further negotiations. 41 Ms Gill repeatedly stated during the hearing that she “didn’t want to listen” and “wasn’t listening” to what was being put to her.
[85] Rio Tinto submitted Ms Gill’s position that she was not interested in further negotiations or making or accepting offers 42 and that she was going to hearing, which is inconsistent with her evidence that she requested to be given 24 hours to consider a settlement offer from Rio Tinto. Ms Gill’s evidence is inconsistent and implausible and Rio Tinto contended Mr Tiley’s evidence should be preferred as it is consistent, plausible and supported by his contemporaneous file notes.
[86] Rio Tinto made submissions on Mr Tiley’s ostensible authority, relied on by Rio Tinto in the event the Commission concludes that proper instructions were not provided to Mr Tiley during the MAC.
[87] Rio Tinto submitted that a solicitor retained to conduct litigation ordinarily has both implied and ostensible authority to bind his client to a compromise of those proceedings. 43 Further, any instruction from the client which restricts the solicitor’s authority to compromise the proceedings will only affect the other party who is on notice of that restriction.44 Rio Tinto submitted that on this basis, the Commission should not accept the contention that the Settlement Agreement is not binding on Ms Gill. There has been no suggestion on the evidence that Rio Tinto or their representative were on notice of any restriction as to the implied and ostensible authority of Mr Tiley. It is Rio Tinto’s position that it should not be bound by any such restriction absent notice of it.45
[88] Rio Tinto submitted any decision by the Commission to dismiss Ms Gill’s application would not result in any injustice as:
(a) The terms of the Settlement Agreement are fair and reasonable (and are in fact generous to Ms Gill) by reference to the remedies available under the Act for unfair dismissals and the usual awards of compensation made by the Commission; and
(b) The complete lack of merit which underpins Ms Gill’s application. In this regard reference can be made to the advice provided by Hall Payne to the CFMU which was later provided to Ms Gill.
Ms Gill’s submissions
[89] Ms Gill submitted that after she rejected Rio Tinto’s offer made at the conciliation conference of $15,000 and relocation costs, she made it clear to Mr Tiley and Mr Smyth that she did not intend to engage in further negotiations. She stated that Mr Tiley and Mr Smyth had then threatened to withdraw representation. She submitted she was faced with the choice of either ceasing negotiations and suffering the loss of her representation, or allowing Mr Tiley to make a further offer.
[90] Ms Gill submitted that Mr Tiley had stated he would suggest to Rio Tinto to “amend” their offer, substituting the relocation expenses component for a monetary amount of $3,000. It was Ms Gill’s submission that Mr Tiley did not act with instructions when he communicated this offer to Commissioner Booth.
[91] Ms Gill submitted that Mr Tiley had reported to her that Rio Tinto had agreed to convert the relocation component into a monetary sum. She submitted that she informed Mr Tiley and Mr Smyth that she could not accept the offer.
[92] Ms Gill submitted Mr Tiley had suggested proposing to Rio Tinto that their offer remain open for acceptance for 24 hours and Ms Gill gave instructions for Mr Tiley to make this suggestion.
[93] Ms Gill submitted that Mr Tiley had reported that Rio Tinto had made an offer for $18,000, however did not indicate if they had agreed to Mr Tiley’s proposal for the offer to remain open for 24 hours. She submitted that she gave instructions to Mr Tiley for him to seek confirmation that Rio Tinto had accepted the proposal for the offer to remain open to acceptance by Ms Gill for 24 hours.
[94] Subsequent to the conference, various correspondences occurred between Ms Gill and her representatives as outlined previously. She submitted that the conduct of Mr Tiley and Mr Smyth in suggesting that an agreement had been reached without her knowledge was dishonest and deceitful.
[95] Ms Gill referred to the letter from Mr Smyth dated 8 February 2017, in which it was indicated that the CFMEU had withdrawn their representation. She submitted that the statement, “...the [CFMEU] will be ceasing any representation of you in relation to the unfair dismissal proceedings,” suggested that the matter had not been resolved as the proceedings would be non-existent if there was a legally binding settlement agreement.
[96] Ms Gill submitted that by the matter being referred back to me subsequently could only mean that a legally binding agreement was not entered into while the matter was with Commissioner Booth.
[97] Ms Gill further submitted that Ashurst did not immediately file an application to dismiss once the matter had been referred back to me and it is reasonable to conclude that Rio Tinto held the belief than an agreement had not been reached.
[98] She submitted both Mr Tiley and Commissioner Booth had failed to explain to her how an agreement had been reached and it was only in the affidavits filed by Ms Mayr and Ms Forrest did she become aware that an offer had been made by Mr Tiley.
[99] During the cross-examination of Mr Tiley, he answered Ms Gill, “I updated you as to what had occurred since we last spoke and our conversation ended at 5 pm. After our conversation ended at 5 pm I then sent you an email confirming the terms, which is the email you have annexed to your witness statement.” 46 Ms Gill submitted that this suggests she did not provide the instruction to Mr Tiley as alleged and that she was not provided with the usual terms until after they had been proposed by Rio Tinto.
[100] Ms Gill contended that she would not and could not have given Mr Tiley any ultimate instructions to make any offer, subject to usual terms, as they were terms that had not been confirmed (let alone discussed) until 5pm, which was after the alleged agreement had already been made.
[101] Ms Gill argued that it is evident that after this agreement occurred, Mr Tiley had returned to her after Rio Tinto had already accepted the offer but made no mention of an offer being made or accepted by Rio Tinto. Further, Ms Gill contended that Mr Tiley made no mention to her or Mr Smyth that an agreement had been made and confirmed before Commissioner Booth.
[102] Ms Gill submitted she did not ultimately instruct Mr Tiley to convey to Commissioner Booth an offer which was to be left open for 24 hours. Ms Gill points to the lack of evidence in Mr Tiley’s contemporaneous notes about the offer being left open for 24 hours as an indication that no instruction was given by her to make the offer.
[103] Ms Gill submitted that it is clear from the evidence that Mr Tiley did not convey the instruction that the offer to be left open for 24 hours for her benefit.
[104] Ms Gill contended that the Commission should prefer her evidence over that of Mr Tiley as there is evidence of dishonesty and fabrication of evidence on the part of the solicitors of both parties.
[105] Ms Gill contended that Mr Humphries was dishonest when a submission was made on behalf of Rio Tinto that there was no suggestion or evidence of any party concerning a purported 24 hour period for acceptance of the offer, but then later went on to describe the 24 hour period and its purpose. Ms Gill asserts that Mr Humphries’ contentions imply that Ms Mayr and Ms Forrest were being dishonest in their affidavits.
[106] Ms Gill submitted that with all the evidence she has exposed and the conduct displayed by the solicitors of both parties, it is only fair that the Commission should prefer her own evidence that she consistently displayed.
[107] In response to Rio Tinto’s submissions on implied and ostensible authority, Ms Gill contended that there was no client agreement in place between her and Hall Payne Lawyers. Ms Gill considered the CFMEU to be the client of Hall Payne Lawyers, through which instructions were sought and given.
[108] Ms Gill submitted that her unfair dismissal application be allowed to proceed to arbitration of the substantive matter.
Consideration
[109] It was communicated to the parties prior to the hearing of the Application to Dismiss that the Commission is not determining whether the purported Settlement Agreement was entered into by Ms Gill under duress of her representatives.
[110] Rio Tinto primarily rely on s.399A(1)(c) in their Application to Dismiss, under which the Commission must be satisfied the settlement agreement was concluded. That is, whether the Settlement Agreement as summarised at [8] of this decision has been concluded by the parties, and if so, whether Ms Gill has unreasonably failed to discontinue the application.
[111] Rio Tinto became aware of Ms Gill’s intention to dispute the Settlement Agreement on or around 14 February 2017 and at that time did not act promptly to give effect to the terms of the Settlement Agreement. It is common ground that Rio Tinto satisfied the accord to prepare and provide a deed of release to Ms Gill. Rio Tinto concedes it went no further to conclude the Settlement Agreement and the agreed amount or non-monetary components have not been afforded to Ms Gill.
[112] I accept Rio Tinto’s submission that the facts of the present matter can be distinguished from those in Granas. It does not follow, however that I can be satisfied in the circumstances that a settlement agreement has been concluded. The parties have not taken steps to give effect to the promissory terms of the Settlement Agreement. Accordingly I am not satisfied that a settlement agreement has been concluded. The legislative test under s.339A(1)(c) is not met.
[113] I now turn to consideration of Rio Tinto’s application under s.587 of the Act.
[114] In Australia Postal Corporation v Gorman 47, Besanko J stated:
“An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.’
…
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.” 48
[115] If there is a binding agreement between the parties, the Commission has the power to dismiss an application as it has no reasonable prospects of success. In Thomas v Symbion Health 49 Commissioner Gooley (as she was then) stated:
‘Section 587 empowers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 provides Fair Work Australia with a broad discretion to dismiss an application.’ 50
[116] In considering Rio Tinto’s s.587 application, the Commission must be satisfied the purported Settlement Agreement was validly entered into between the parties. The key issue in dispute is whether Ms Gill made a valid offer to Rio Tinto through her legal representative which was capable of being accepted by Rio Tinto. That is, whether Ms Gill gave Mr Tiley instructions to make an offer in the terms of the Settlement Agreement.
[117] I have had regard to all of the evidence before the Commission, together with the oral and written submissions of the parties.
[118] Ms Mayr and Ms Fiona Forrest made contemporaneous notes of their participation in the settlement discussions which were largely held by the Rio Tinto Party in ex parte discussions with Commissioner Booth. Only at the commencement of the discussions and at the finalisation of the purported settlement terms were the Rio Tinto Party joined to the call between Commissioner Booth and Mr Tiley.
[119] There is no reference in Ms Mayr and Ms Forrest’s notes to a 24 hour cooling-off period or a period for Rio Tinto to consider the offer. The notes are clear that the offer put by Mr Tiley purportedly on Ms Gill’s behalf was for $18,000 gross, not 18 weeks’ pay.
[120] Mr Tiley’s evidence is that he does not know if the reference to Rio Tinto having 24 hours to consider Ms Gill’s offer was put by Commissioner Booth to Rio Tinto, as he was not party to the call between Commissioner Booth and the Rio Tinto Party. On the evidence before the Commission, I do not consider that it was put by Commissioner Booth to Rio Tinto because on the balance of probabilities, the offer of $18,000 gross put by Mr Tiley for Rio Tinto’s consideration was immediately accepted by Rio Tinto and it was therefore not necessary for the Commissioner to convey it.
[121] On Mr Tiley’s evidence, Commissioner Booth had communicated to Mr Tiley that she considered Rio Tinto might be able to resolve the application for the payment of $15,000 plus approximately $3,000 in relocation costs. Presented with a concise offer of $18,000, it is open to the Commission to find that there was no need for Rio Tinto to take time to consider the offer made by Mr Tiley for any protracted period of time; it was an offer that Rio Tinto was comfortable to immediately agree to. Accordingly, I am not surprised that the notes of Ms Mayr and Ms Forrest do not contain a reference to a 24 hour cooling-off period or consideration period.
[122] The core of the issue to be determined is did Mr Tiley have valid instructions from Ms Gill to enter into the Settlement Agreement. Ms Gill’s contention is that Mr Tiley did not on three distinct grounds:
● The amount of $18,000 versus Ms Gill’s view that the amount might have been 18 weeks’ pay;
● Ms Gill’s view that Mr Tiley promised her a 24 hour cooling-off period for her benefit; and
● The settlement terms including a notice of discontinuance.
[123] Ms Gill’s contentions and evidence as to what she understood to be a settlement amount reached during the MAC has wavered from the period shortly after the call ended through until the hearing and closing submissions. As is clear from Ms Gill’s email communication in the wee hours following the MAC, Ms Gill firstly asked Mr Tiley if the amount she had agreed to was 18 weeks’ pay. Ms Gill then emailed Mr Smyth asking if the amount was 22 weeks’ pay.
[124] At numerous junctures during the hearing I indicated to Ms Gill the Commission’s preliminary concerns with her evidence that she thought she had instructed Mr Tiley to settle for the amount of 18 weeks, potentially with an additional $3,000, when Rio Tinto had only shortly beforehand rejected Ms Gill’s claim of 15 weeks.
[125] I do not accept that Mr Tiley misunderstood Ms Gill with respect to the amount of money on which to settle the application. Mr Tiley’s evidence, together with Mr Smyth’s evidence on this issue was resolute; each former representative of Ms Gill was certain Ms Gill had instructed Mr Tiley to make an offer to settle for the amount of $18,000. The $18,000 was considered by both Mr Tiley and Mr Smyth to be a ‘good’ outcome for Ms Gill, as each gentleman weighed up the risk of arbitration, and a potential finding that Ms Gill’s dismissal was not unfair.
[126] It matters not what the Rio Tinto Party understood the Settlement Agreement amount to be; it is clear that Mr Tiley communicated Ms Gill’s purported agreement to settle for an amount of $18,000. It matters only if Mr Tiley had Ms Gill’s instructions to make the offer.
[127] I am satisfied Mr Tiley did have Ms Gill’s instructions to make the offer of $18,000. Ms Gill’s evidence that she was not listening when the settlement figures were being discussed and had ‘switched off’ could not have been known to Mr Tiley or to Mr Smyth. I do not accept Ms Gill said to Mr Tiley or to Mr Smyth any words to the effect that she did not have capacity to continue the negotiations. While Ms Gill might have been experiencing a busy, noisy household with young school-age children requesting her attention during parts of the telephone calls she was having with Mr Tiley and Mr Smyth, I do not find Ms Gill informed her representatives that she was without capacity to provide instructions.
[128] Further, I accept Mr Tiley’s evidence that if he considered Ms Gill did not have capacity to enter into a binding agreement, he would have sought to end the MAC. As an experienced practitioner engaged by the CFMEU, and assuming continued engagement by the CFMEU, it would have, in fact been in Mr Tiley’s interests for the application to continue to arbitration due to the legal fees Hall Payne Lawyers could have charged the CFMEU.
[129] With respect to Ms Gill’s assertion that she was assured by Mr Tiley that agreement had been reached on a 24 hour cooling-off period for her benefit, I have determined Ms Gill understood Mr Tiley’s recommendation on this issue.
[130] I am satisfied Ms Gill genuinely believed the reference to the 24 hour period that Mr Tiley was going to discuss with Commissioner Booth to inform the Rio Tinto Party was for her benefit. It is clear there is some room from what Ms Gill understood to be the purpose, and what an experienced solicitor understood to be the purpose of the 24 hour period.
[131] The evidence of Mr Smyth and Mr Tiley is aligned; the purpose of the 24 hour period was to strategically put some pressure on Rio Tinto to convince them that this latest offer of $18,000 was Ms Gill’s lowest offer, and after protracted discussions, the matter should be resolved that afternoon.
[132] I am satisfied Mr Smyth or Mr Tiley initiated a discussion with Ms Gill as to a 24 hour period. Equally I am satisfied Ms Gill did not initiate the discussion of a 24 hour period. Once a 24 hour period had been flagged by Mr Smyth or Mr Tiley, Ms Gill was attracted to this idea, believing it to be for her benefit. I am satisfied there was a communication breakdown between Mr Tiley and Ms Gill at this point in time.
[133] I am, however, satisfied that Mr Tiley held a genuine belief that the instructions from Ms Gill were in agreement with his recommendation; to put the offer of $18,000 to Rio Tinto, and to leave the offer open, if not immediately accepted, for a period of 24 hours.
[134] Further or in the alternative, I accept Rio Tinto’s submission that Mr Tiley had the implied and ostensible authority to enter into the Settlement Agreement on Ms Gill’s behalf.
[135] Ms Gill’s contention that Mr Tiley was not her solicitor for the purposes of the proceedings is misconceived. Hall Payne Lawyers filed a notice of representative commencing to act on her behalf early on in the proceedings and had carriage of Ms Gill’s matter for the purposes of filing her material and participating in the MAC. In cross-examination, Mr Tiley confirmed both Ms Gill and the CFMEU were his clients for the purposes of the proceedings, provided there was no conflict between the two of them. 51
[136] If Ms Gill had intended for Mr Tiley’s capacity to compromise on the proceedings (by way of making offers of settlement) to be limited or restricted, it was necessary for Ms Gill to have both given that instruction to Mr Tiley and for Mr Tiley to have communicated it to Rio Tinto. 52 There is no evidence that Ms Gill did give Mr Tiley instructions of that kind and even if she did, Rio Tinto was not on notice of such limitation or restriction.53
[137] I do not accept Ms Gill’s evidence that upon Mr Tiley recounting the offer put and accepted by the Rio Tinto Party in the presence of Commissioner Booth, Ms Gill was listening and waiting for the reference to the 24 hour cooling-off period. Mr Smyth’s evidence is that he doesn’t recall this occurring, although I note his evidence that he was, during this time, driving from place to place while lawfully one his phone. There is no reference to this event in Mr Tiley’s notes, nor the notes of Ms Mayr or Ms Forrest.
[138] It is Ms Gill’s contention that she suspects Mr Tiley did not actually make a subsequent phone call as she discussed, and that is why there would not be a reference to this being cleared up in Ms Mayr and Ms Forrest’s notes. Ms Gill contends a suspicion over Mr Tiley’s conduct.
[139] While Ms Gill is adamant that she did give this particular instruction to Mr Tiley, and Mr Tiley exited the call with her and Mr Smyth, and then resumed the telephone call to assure her he had acted on her instructions, I do not accept this occurred. I am satisfied that Mr Tiley was of the view a valid settlement had been reached in the tripartite conversation with Commissioner Booth and the Rio Tinto Party. There would be no utility in Mr Tiley seeking a further conference to announce that Ms Gill wanted a 24 hour cooling-off period over the Settlement Agreement just reached.
[140] It is clear that there was no further tripartite discussion, and accordingly Ms Gill effectively asks the Commission to find the following:
● Mr Tiley stated to Ms Gill and Mr Smyth that he will end the call with them, having settled for 18 weeks’ pay (and not $18,000), and make a call to Commissioner Booth and the Rio Tinto Party;
● Mr Tiley did not make such a call; and
● Mr Tiley returned to Ms Gill and Mr Smyth and misrepresented that he had just again spoken with Commissioner Booth and the Rio Tinto Party to obtain for Ms Gill’s benefit a 24 hour cooling-off period over the in-principle agreement reached.
[141] I do not accept Ms Gill’s submission for the following reason. Firstly, Ms Gill was incorrect about Mr Tiley’s report of the settlement amount reached at this very point in time, and accordingly her evidence on these important issues is less than satisfactory. Secondly, while it is true that advocates and skilled advocates before the Commission may sadly not always be truthful in all Commission matters, Mr Tiley has a substantial responsibility to the Commission as a solicitor and as a regular representative before the Commission.
[142] I do not find, on the balance of probabilities that in Mr Tiley’s case, he made the representations to Ms Gill as claimed by her. To do so would require me to determine Mr Tiley had purposely misinformed Ms Gill that he held a further meeting with Commissioner Booth when he knew that not to be true. Again, on the balance of probabilities, I do not find Mr Tiley would have put at risk his practising certificate on this issue in a jurisdiction well-walked by Mr Tiley.
[143] On the third issue as to whether Mr Tiley was satisfied Ms Gill knew the consequences of reaching a settlement agreement with Rio Tinto, I accept Mr Tiley did not canvass with Ms Gill expressly the issue of filing a notice of discontinuance in these proceedings once the settlement had been completed. In questioning by me on this issue, the following exchange occurred: 54
Cmr: We'll have Mr Tiley say what those terms are, thank you.
…
Mr Tiley: Telephone in FWC with Ian Humphreys. Offer accepted. 18,000 gross to the applicant. Resignation, statement of service, prepare deed to Tiley, usual terms (within 48 hours.) Discontinuance, LMT, mutual terms as to confidentiality, non-disparagement, release and bar.
Ms Gill: Mr Tiley, can you repeat the second last term, please?
Mr Tiley: Discontinuance?
Ms Gill: That was never discussed with me, was it?
Mr Tiley: The - all of the discussions that occurred in conciliation on the 6th were premised on attempting to reach an agreement which would see the proceeding discontinued by you, so yes.
Ms Gill: I disagree: it was never mentioned and the first time I became aware of it was during these statements. You didn't state that before when I queried you before and yet you stated it now, checking your notes and I thought that would be part of - as you state - usual terms of agreed settlement. There's a bit of inconsistency there?
Mr Tiley: I didn't state discontinuance being a usual term of settlement because self-evidently any settlement would come with discontinuance, a fact of which I'm comfortable you were well aware on 6 February based on our discussions and the instructions that you provided to me.
[144] I do not accept Ms Gill would have been blind to the consequences of reaching an agreement with Rio Tinto to resolve the application. Ms Gill is not a young, naïve woman with relative inexperience in the workplace. I do appreciate Ms Gill did not have much time with Mr Smyth and Mr Tiley prior to the commencement of the MAC, but it would have abundantly clear to Ms Gill that should she reach an agreement with Rio Tinto on an amount to resolve the unfair dismissal application, the application would need to be withdrawn. She could not reasonably expect to be offered a substantial amount a short time out from a three-day hearing without the application being withdrawn by her on reaching agreement as to the settlement terms.
[145] I am satisfied all other ‘usual’ terms that were ultimately reached including the requirement for confidentiality and non-disparagement were sufficiently explained to Ms Gill and she agreed to these terms as part of the offers made by Mr Tiley on her behalf.
[146] In Masters v Cameron 55the High Court held that when parties reach agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, that the case may belong to any of three categories:
(1) the parties have agreed on all terms and intend to be immediately bound to perform 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
(2) the parties have agreed on all terms 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
(3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.”
[147] In the first two categories above the High Court held there was a binding contract.
[148] I find the Settlement Agreement was properly made between Ms Gill and Rio Tinto, and the Settlement Agreement falls within the umbrella of the first category described in Masters v Cameron. Accordingly, a binding settlement agreement was reached at the conclusion of the MAC.
Conclusion
[149] I am not satisfied the Settlement Agreement was concluded. Accordingly I decline to dismiss the Application pursuant to s.399(A)(1)(c).
[150] I am satisfied there should be no deviation from the principle determined in Thomas v Symbion Health. I am satisfied the present matter before the Commission has no reasonable prospects of success because the parties have entered into the Settlement Agreement.
[151] In accordance with the Settlement Agreement, payment of $18,000 gross [less relevant taxation] should be payable by Rio Tinto to Ms Gill within 7 days of this decision.
[152] Rio Tinto’s Application to Dismiss is granted and Ms Gill’s unfair dismissal application is dismissed pursuant to s.587 of the Act.
COMMISSIONER
1 PN96.
2 PN133.
3 PN270.
4 Statement of Tammy Gill at [40].
5 Ibid at [50].
6 Ibid at [57].
7 PN762-PN764.
8 PN811.
9 PN151.
10 PN330.
11 PN331.
12 PN412 – PN417.
13 PN424 – PN427.
14 PN429 – PN430.
15 PN157.
16 PN501.
17 PN507 – 509.
18 PN671.
19 PN672 – PN674.
20 State of Tammy Gill at annexure TG02.
21 Ibid at annexure TG03.
22 Ibid at annexure TG04.
23 Ibid at annexure TG07.
24 Ibid at annexure TG08.
25 Ibid at annexure TG09.
26 PN810.
27 [2015] FWCFB 1795.
28 Ibid at [27].
29 PN136-137.
30 PN150.
31 PN277-PN279.
32 PN280.
33 PN397.
34 PN811.
35 PN817-PN819.
36 PN817-PN819.
37 Exhibit A1 at [52].
38 PN294 – PN309, PN375 – PN376 and PN476 – PN477.
39 PN294 – PN308.
40 PN433.
41 PN762.
42 PN767.
43 See Donellan v Watson (1990) 21 NSWLR at 342.
44 See Donellan v Watson (1990) 21 NSWLR at 342, applied in Presrod Pty Ltd v Wollongong City Council [2010]; BC201007426 at [78] per Craig J.
45 See Re Webuildem Pty Ltd [2012] NSWSC 708.
46 PN222.
47 [2011] FCA 975.
48 Ibid at [31]-[33].
49 [2011] FWA 5458.
50 Ibid at [59].
51 PN449 – PN455.
52 See Donellan v Watson (1990) 21 NSWLR at 342.
53 See Re Webuildem Pty Ltd [2012] NSWSC 708.
54 PN236 – PN241.
55 (1954) 91 CLR HCA 353.
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