Patrick Moore v Express Demolition and Excavation Pty Ltd

[2017] FWC 1696

[2017] FWC 1696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Moore
v
Express Demolition & Excavation Pty Ltd
(U2017/107)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 APRIL 2017

Application for an unfair dismissal remedy – matter settled – application dismissed pursuant to s.587 of the Act.

[1] On 4 January 2017, Mr Patrick Moore made an application (the Application) for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The Application was referred to conciliation at 9:15am on Friday 10 February 2017. At conciliation, both Mr Moore and Express Demolition & Excavation Pty Ltd (Express Demolition) were self-represented. In such circumstances, a 3-day cooling off period would have applied to any settlement reached by them at conciliation, unless they agreed to it being waived.

[3] The parties reached agreement on the settlement of the matter and agreed to waive the 3-day cooling off period. This was confirmed in correspondence the conciliator sent to them almost immediately after conciliation, at 10:42am, which stated:

“I confirm that you reached a settlement agreement and I attach terms of settlement. I confirm that the parties have agreed to waive the cooling off period that applied to this agreement.” [my emphasis]

[4] Later on the same day at 5:28pm, Mr Moore telephoned the Fair Work Commission (the Commission) to inform that he had received legal advice and would like to proceed with his application. The Commission advised Mr Moore that this request should be made in writing. Accordingly, Mr Moore subsequently sent an email to the conciliator and the Commission at 6:11pm, stating the following:

“I am advising in writing that I have reconsidered my decision to settle (as attached) and intend to pursue the matter further. Please advise the Commission of my intention. Please advise the next course of action.” [my emphasis]

[5] Express Demolition was not initially copied in on the correspondence sent by Mr Moore advising that he had reconsidered his decision to settle the matter. It was forwarded to Express Demolition by the Commission at 11:45am on Wednesday 15 February 2017.

[6] Express Demolition responded to Mr Moore’s request with a reply email to the Commission at 12:38pm on 15 February 2017, stating it “came as a surprise as both parties agreed to waive the cooling off period”. It also advised that the settlement amount had already been paid to Mr Moore.

[7] On Thursday 16 February 2017, the Commission sent correspondence to parties regarding Mr Moore’s request to proceed with his application. It stated:

“Our records show that this matter was settled at a conciliation conducted by the Commission on Friday, 10 February 2017. An email to that effect was provided to the parties the same day. In light of this, the Deputy President is considering whether he should, of his own motion, dismiss Mr Moore’s application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.”

[8] Mr Moore was directed that prior to a determination as to whether his application would be dismissed, he was to file and serve evidence as to why his application should not be dismissed because it has no reasonable prospects of success by close of business on Friday 24 February 2017. An extension until 4:00pm on 2 March 2017 was subsequently granted following a request by Mr Moore.

[9] On 28 February 2017, Express Demolition sent an email to the Commission, objecting to Mr Moore’s request on the following grounds:

“… upon conciliation … the Applicant agreed to fully and finally settle the matter, with both parties agreeing to waive the cooling off period, on the basis of the Terms of Settlement … For our part all terms of settlement including payment (attached) were met within the specified timeframe. A sign copy of the Terms of Settlement were posted to the Applicant on around 14th Feb. We do not wish for this matter to cause any further interruption or cost to our business."

[10] Express Demolition attached proof of payment of the settlement funds on 15 February 2017 to this email.

[11] Mr Moore provided his submissions on 1 March 2017. They largely addressed circumstances that he alleges make his dismissal unfair and the amount paid to him by Express Demolition to settle the matter. Mr Moore outlined that at the conciliation on 10 February 2017, he was advised that Express Demolition agreed it would provide him with one week’s wages as a settlement payment and if he accepted this, he should sign and return the terms of settlement and the payment would then be made. Mr Moore stated that he decided that the amount was not fair and advised the Commission that same day. He queried why Express Demolition had forwarded the settlement amount to his account without his “knowledge or approval”.

Consideration

[12] In Masters v Cameron, 1 the High Court held that where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. The three classes are:

1. The parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.

2. It may be a case in which the parties have completely agreed upon all the terms of their bargain 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.

3. The case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

[13] Both the conciliator, immediately after the conciliation, and Express Demolition, when it first became aware of Mr Moore’s changed position, consider the matter settled at the conciliation. Initially at least, Mr Moore also appears to have shared that view, as evidenced in the statement in his email to the Commission at 6.11pm on 10 February 2017, “I have reconsidered my decision to settle”. While Mr Moore now appears to be characterising the agreement reached at the conciliation as a case falling within the third type discussed in Masters v Cameron, i.e. if he agreed to the settlement amount Express Demolition put forward at conciliation, he was to sign and return the terms of settlement in order to receive payment, I am not persuaded this reflects what occurred. I prefer the contemporaneous recollection of events of the conciliator, Express Demolition and Mr Moore himself and am satisfied the matter settled at the conciliation on 10 February 2017.

[14] I am also satisfied the three-day cooling off period was waived. The correspondence sent by the conciliator at 10:42am on 10 February 2017 unequivocally states the parties had agreed to waive the cooling off period. This was also the recollection of Express Demolition and its actions following the conciliation reflect this. I have also noted Mr Moore has not challenged the veracity of the conciliator’s confirmation that the cooling off period had been waived, either at the time he first advised he wished to pursue his application or when he made his most recent submissions.

[15] I am therefore satisfied that the parties reached agreement by way of a binding settlement at the conciliation on 10 February 2017 without a cooling off period and that the agreement was in the nature of the first or second type discussed in Masters v Cameron. The agreement was immediately binding and reflected in the terms of settlement document provided by the conciliator to parties shortly after the conciliation.

[16] In Australia Postal Corporation v Gorman, 2 Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.3

[17] His Honour stated:

“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, 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.” 4

[18] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power to dismiss an application on the basis that it has no reasonable prospects of success.

[19] Section 587(1) of the Act provides as follows:

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.

[20] As I have found that the parties reached agreement at the conciliation on 10 February 2017 and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. An order to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

 1 (1954) 91 CLR 353 at [360]-[361].

 2 [2011] FCA 975.

 3 Ibid at [31].

 4 Ibid at [33].

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