Robert Stewart v The Oolong Aboriginal Corporation

[2024] FWC 2357

[2024] FWC 2357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Stewart
v

The Oolong Aboriginal Corporation

(U2023/9899)

COMMISSIONER MATHESON SYDNEY, 3 SEPTEMBER 2024

Application for an unfair dismissal remedy – binding contract between the parties – s 587 – no reasonable prospects of success – application dismissed.

1. On 10 October 2023, Mr Robert Stewart (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with The Oolong Aboriginal Corporation (Respondent).

1. The matter was allocated to my Chambers on 3 January 2024 for determination. A mention and directions hearing was held on 10 January 2024 and directions were made for the filing of materials and the matter was listed for hearing in person in Sydney on 4 and 5 March 2024.

1. On the morning of 4 March 2024 at the commencement of the hearing I enquired whether the parties would like the assistance of the Commission in a final attempt to resolve the matter through a process of mediation, the parties indicated that they were agreeable to the Commission assisting them in attempting to resolve the matter through a process of mediation. I proceeded to conduct a conference in private.

1. The mediation conference continued on 5 March 2024 and the parties reached agreement to settle the matter pursuant to terms of settlement drafted by the Commission. The terms of settlement were executed and exchanged at the Commission in Sydney on 5 March 2024. 

1. On 15 April 2024 my Chambers wrote to the parties seeking that the Applicant file a Form F50 Notice of Discontinuance (Form F50) once the Respondent had complied with the terms of settlement. No response was received.

1. On 2 May 2024 my Chambers emailed the Applicant to the email address listed on the Form F2 application (Form F2) seeking that they file a Form F50. On 2 May 2024 the Applicant responded advising “Thank you, will do”.

1. On 17 and 22 May 2024 my Chambers telephoned the Applicant on the contact number listed on the Form F2 and left two voicemail messages requesting the Applicant call my Chambers. On 28 May 2024, my Chambers emailed the Applicant to the email address listed on the Form F2 seeking that they file a Form F50.

1. On 5 June 2024, my Chambers telephoned the Applicant on the contact number listed on the Form F2 and left a voicemail message referring to my Chambers’ previous voicemail messages and emails and requesting that the Applicant file a Form F50.

1. On 13 June 2024, my Chambers telephoned the Applicant on the contact number listed on the Form F2 referring to my Chambers’ previous emails. The Applicant advised my Chambers that they no longer use the email address listed on the Form F2 and provided an alternate email address. The Applicant advised that they were unable to file a Form F50 that day but that they would get to it as soon as they could.

1. On 13 June 2024, my Chambers forwarded the previous email correspondence sent to the Applicant’s email address listed in the Form F2 to the alternate email address provided and requested that the Applicant file a Form F50.

1. On 20 June 2024, my Chambers again emailed the Applicant to the alternate email address provided seeking that the Applicant file a Form F50. On 12 July 2024, my Chambers telephoned the Applicant on the contact number listed on the Form F2 and left a voicemail message referring to the phone conversation on 13 June 2024 and my Chambers’ emails seeking that the Applicant file a Form F50.

1. On 13 August 2024, my Chambers emailed the Applicant referring to the binding settlement agreement reached between the parties on 5 March 2024, noting that the Applicant had not filed a Form F50 and stating:

“In the absence of Mr Stewart filing a Form F50 Notice of Discontinuance by 4:00pm (Sydney time) on Thursday, 15 August 2024, the Commissioner proposes to publish a decision dismissing the application pursuant to s.587(1)(c) of the Fair Work Act 2009 (Cth), on the basis that a binding settlement was reached that extinguishes the cause of action and replaces it with a new cause of action based on the terms of the settlement agreement, and the application would therefore have no reasonable prospects of success.

If either party has any concerns about the proposed course of action they are to advise Chambers by no later than 4:00pm (Sydney time) on Thursday, 15 August 2024.”

1. No response was received from either party.

1. In Masters v Cameron, the High Court held that a binding agreement could come about in the following manner:

“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. It may be one in which 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. Or, secondly, 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. Or, thirdly, 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.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.”[1]

1. I am satisfied the agreement fell within the first category described in Masters v Cameron[2] and that there was a binding contract.

1. 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] and said:

“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]

1. If there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success. In particular, s.587(1) 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.’

1. The parties reached a binding settlement agreement of the first type discussed in Masters v Cameron[6] establishing a valid and effective accord and satisfaction that extinguishes the Applicant’s cause of action in respect of his claim that he was unfairly dismissed. Therefore, the Applicant’s application for an unfair dismissal remedy is dismissed pursuant to s.587(1)(c) of the Act on the basis that the application has no reasonable prospects of success. An Order to this effect will be issued in conjunction with this Decision.

COMMISSIONER

[1] Masters v Cameron [1954] 91 CLR 353 at 360.

[2] [1954] 91 CLR 353 at 360.

[3] [2011] FCA 975.

[4] [2011] FCA 975 at [31].

[5] [2011] FCA 975 at [33].

[6] [1954] 91 CLR 353 at 360.

Printed by authority of the Commonwealth Government Printer

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