Paul Taylor v Woolworths Group T/A Beer Wine Spirits

[2018] FWC 2907

[2018] FWC 2907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Taylor
v
Woolworths Group T/A Beer Wine Spirits
(U2018/1999)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 MAY 2018

Application for an unfair dismissal remedy.

[1] On 27 February 2018, Mr Paul Taylor made an application for unfair dismissal remedy to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Taylor said his employment had been terminated by Woolworths Group (Woolworths) on 6 February 2018.

Conciliation

[3] The application was referred to conciliation on 23 March 2018. Mr Taylor attended the conciliation and Ms Monique Lizio and Ms Caddie Kerr attended for Woolworths. In such circumstances, it is the Commission’s practice to offer the self-represented parties a three business day cooling off period in relation to any settlement reached by them at conciliation, unless they agree to it being waived.

[4] Immediately following the conciliation on 23 March 2018, the Conciliator sent correspondence to the parties, confirming that a settlement agreement had been reached and that the terms of settlement were to be sent by Ms Lizio. The correspondence also provided:

“As discussed, a three day cooling off period now applies. I will hold the file for three business days to allow you (the parties) time to consider the agreement reached at conciliation. Unless I hear from either of you in writing by the close of business Wednesday 28 March 2018 the matter is resolved in the terms attached and I will close the file accordingly.

If one of the parties does not want to proceed with the settlement and advises me during the cooling off period, I will refer the matter for arbitration before a Member of the Commission. …” (bold in original)

[5] On 29 March 2018, Mr Taylor telephoned the Commission and advised he had emailed the Conciliator and was waiting for a response. He advised he would forward a copy of the email to the Commission’s Registry. Later the same day, at 1:58pm, Mr Taylor sent an email to the Conciliator in the following terms:

“Emma, after much though and considering all circumstances I have decided to proceed to arbitration. Thank you. Paul Taylor. Ps sent yesterday at 2.30 it did not reach you. P.s I sent yesterday at 2.30but email was not received by you.” (direct quote)

[6] On 30 March 2018, at 2.47pm, Mr Taylor again emailed the Conciliator as follows:

“-------- Original Message ----------

Hello Paul, are you able to forward to me the email Emma, after much thought and considering all circumstances I have decided to proceed to arbitration. Thank you. Paul Taylor. Ps sent Monday at 2.30 it did not reach you.

P. s I sent yesterday at 2.30but email was not received by you.” (direct quote)

[7] On 3 April 2018, a Commission staff member spoke with Mr Taylor and advised as no email had been received from him prior to the expiration of the cooling off period, he would need to make a formal written request for the matter to be reopened. The following day, Mr Taylor telephoned the Commission seeking confirmation that his email requesting the matter be re-opened had been received. Mr Taylor was advised no material had been received. Mr Taylor said he was having issues with email and he would try to send the email again from a friend’s email account, otherwise he would bring a hard copy letter to the Commission’s Registry.

[8] On 6 April 2018, Mr Taylor emailed the Commission’s Registry, saying:

“I have reconsidered the the outcome and I would like to proceed to the tribunal no agreements have been signed and I have the email on tablet as sent. Thank you Paul.” (direct quote)

[9] On 11 April 2018, Mr Taylor rang the Commission and asserted he had sent an email within the cooling off period. Mr Taylor was asked to forward that email and he said he would do so.

[10] On 13 April 2018, I caused correspondence to be sent to Mr Taylor requiring him to file submissions and evidence, by close of business 20 April 2018, as to why his application should proceed to a hearing.

[11] On 20 April 2018, Mr Taylor attended the Commission’s Registry to file his submissions. Mr Taylor also brought his Samsung tablet to be taken as evidence, however he was advised this was not required and an email to the Conciliator during the cooling off period was sought. Mr Taylor advised he would seek the assistance of his friend or go to a Samsung store to print the email from the sent items to submit into evidence.

[12] Following receipt of Mr Taylor’s submissions, Woolworths was directed to file and serve material as to why the matter should not be re-opened and listed for Arbitration.

Submissions of Mr Taylor

[13] Mr Taylor submitted that no binding agreement was reached and no agreement was signed. He said an email was submitted at 14.25 hours on 28 March 2018, within the cooling off period, via his Samsung tablet.

[14] Also on 20 April 2018, the Commission received an email from Ms Toni Huang which noted “[p]lease see attachment for email that Paul Taylor sent on 28^th Mar 2018.” The attachment was a document that provided:

•  a from field with ‘Paul Taylor’;

•  a subject field with “U2018/1999 Taylor v Woolworths Group”

•  the time of 14.25 and date of 28/03/2018

•  the text: “Emma, after much thought and considering all the circumstances I have decided to proceed to arbitration. Please note I have been unable to receive any of your attachments? Thank you Paul Taylor

Sent from Samsung tablet”

Submissions of Woolworths

[15] Woolworths submitted that at conciliation, an agreement was reached with Mr Taylor and a draft agreement was provided to him later the same day for his consideration during the cooling off period. It submitted no contact was made with it or the Conciliator by close of business on 28 March 2018, the end of the cooling off period.

[16] Woolworths submitted it had concerns around the legitimacy of the email sent to the Conciliator on 28 March 2018 (referred to at [14] above), as there was no recipient stated in the email and neither the Conciliator nor Woolworths received any correspondence.

Report of the Commission’s IT department

[17] On 10 May 2018, I requested a report be prepared by the Commission’s IT department as to whether the Commission (at any of its email addresses) received correspondence from either of Mr Taylor’s two email addresses, or Ms Huang’s email address, on 28 March 2018. The report was prepared by the Commission’s email provider and forwarded to my chambers on 15 May 2018.

[18] The report covered each of 28 and 29 March 2018. It provides that no email was received from Mr Taylor’s email addresses or Ms Huang on 28 March 2018 and confirms emails were received from him on 29 March 2018 at 1.50pm, 1.58pm and 1.59pm. The email Mr Taylor sent at 1.50pm was sent to an invalid email address and I am advised it would have bounced back. The report confirms the email from Mr Taylor at 1.58pm was sent to the Conciliator and the email at 1.59pm was sent to the Commission’s Registry.

Consideration

[19] I am satisfied an agreement was reached by the parties at the conciliation on 23 March 2018. This is evidenced by the correspondence sent by the Conciliator immediately following the conciliation, which says “I confirm that you reached a settlement agreement… .” The correspondence does not indicate that settlement was subject to any conditions, aside from the right of both parties to withdraw from the agreement within the cooling off period.

[20] The three business day cooling off period expired at the close of business on Wednesday 28 March 2018. Neither the Conciliator nor Woolworths heard from Mr Taylor by the close of business on Wednesday 28 March 2018. Significantly, the Conciliator did not receive advice from Mr Taylor that he did not want to proceed with the settlement during the cooling off period. Despite Mr Taylor’s assertion that an email was sent by him to the Commission at 2.25pm on 28 March 2018, there is no record of it being received. This has been confirmed in the report provided to me by the Commission’s IT department. Further, there was no correspondence received via post from Mr Taylor during the cooling off period indicating he did not wish to be bound by the agreement. I am therefore not satisfied that Mr Taylor advised he did not wish to be bound by the terms of the settlement agreement reached at conciliation prior to the expiry of the cooling off period. As a result, the matter was resolved on the terms agreed at the conciliation on 23 March 2018.

[21] 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. 2

[22] I am satisfied the parties reached an agreement by way of a settlement at conciliation on 23 March 2018, that the agreement was in the nature of the first or second type discussed in Masters v Cameron and it became binding upon expiration of the three day cooling off period.

[23] In Australia Postal Corporation v Gorman, 3 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.4

[24] 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.” 5

[25] 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.

[26] 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.

[27] I have found that on 23 March 2018, the parties reached agreement at conciliation and I am satisfied that the settlement agreement was of the first or second type discussed in Masters v Cameron. As a consequence, 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

Printed by authority of the Commonwealth Government Printer

<PR607344>

 1 (1954) 91 CLR 353.

 2   Ibid at [360]-[361].

 3 [2011] FCA 975.

 4 Ibid at [31].

 5 Ibid at [33].