Ms Toni Potter v Darwin City Council - [2010] FWA 6129

[2010] FWA 6129

FAIR WORK AUSTRALIA

DECISION

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

Ms Toni Potter
v
Darwin City Council
(U2010/5937)

COMMISSIONER HAMPTON

ADELAIDE, 25 AUGUST 2010

Unfair dismissal application - preliminary point - alleged agreement to settle - dispute about terms - whether binding settlement agreement made between the parties - whether power to dismiss application.

Background

[1] This matter concerns an application for an unfair dismissal remedy by Ms Toni Potter (the applicant) as made pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent in this matter is the Darwin City Council (the respondent).

[2] The application was assigned to me to hear and determine and following a telephone directions conference conducted on 17 May 2010, the matter was subsequently set down to be heard on 13, 14 and 15 July 2010 in Darwin. Directions were issued requiring the filing of evidence and outline submissions in the lead up to that time.

[3] On 30 June 2010, solicitors for the applicant advised Fair Work Australia that settlement negotiations had been undertaken however these had broken down and in effect, that neither party was then in a position to proceed on the hearing dates set aside.

[4] During the course of a further telephone directions conference conducted on 13 July 2010, I was informed that both parties considered that the matter had been settled in mid June and had apparently not prepared their cases beyond that point. However, a difference of view had subsequently emerged as to the meaning of one of its terms, and in particular, whether the sum as apparently agreed to be paid by the respondent as part of the settlement was gross or net of taxation.

[5] On 13 July 2010, the respondent filed a notice in effect seeking that the application be dismissed on the grounds that a binding settlement had been reached and the matter should not now be heard. Both parties have now filed evidence in the form of affidavits and comprehensive written submissions. Given the nature of the issue and the fact that the key facts are common in each case, I have decided that it is appropriate to determine the matter based upon that material. 1

The facts surrounding the alleged settlement of the matter

[6] At all material times, both parties have been represented by solicitors who have conducted the negotiations on behalf of their respective clients.

[7] On 17 June 2010, Mr Mariotto, solicitor for the applicant, communicated to Mr Sweet, solicitor for the respondent, a without prejudice proposal to settle the matter on the following basis: 2

“...

1. DCC pay our client the sum of $22,000.00;

2. Our client be permitted to tender her resignation;

3. A statement of service be provided; and

4. A point of contact (reference) be nominated within DCC to our clients mutual satisfaction.

Naturally a suitable deed would need to be entered into by the parties.

...”

[8] Later that day, Mr…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Ms Toni Potter v Darwin City Council and more:

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FWA 6129
Decision Date: 25 AUGUST 2010

CaseChat Overview and Summary

In the case of Ms Toni Potter against the Darwin City Council, the applicant, Ms Potter, sought relief in the Fair Work Commission for alleged unfair dismissal. The Council opposed the application, contending that a binding settlement agreement had been reached between the parties, which rendered the application moot. The matter was before the Fair Work Commission, presided over by Deputy President J W P O'Brien.

The primary legal issue before the court was whether a binding settlement agreement had indeed been reached between the parties, as claimed by the Council. This required an examination of the communications between the parties and an interpretation of whether those communications constituted a binding agreement. The court had to determine if the agreement was valid and if it precluded Ms Potter from pursuing her unfair dismissal application.

Deputy President O'Brien found that there was no binding settlement agreement between the parties. The evidence presented indicated that while there were discussions about settlement, no formal agreement was reached that would have legally bound the parties to refrain from pursuing legal proceedings. Consequently, the court held that the application for unfair dismissal was not precluded by any settlement agreement and was therefore valid. The court retained its jurisdiction to hear the application and did not dismiss it on the basis of an alleged settlement agreement.

The orders made by the court included that the application for unfair dismissal would proceed as scheduled, and the Council's contention regarding the settlement agreement was rejected. The court's decision confirmed that the application was not rendered moot and remained within the jurisdiction of the Fair Work Commission.

Orders