S. S. v An Employer

[2018] FWC 4377

[2018] FWC 4377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

S. S.
v
An Employer
(U2018/3051)

COMMISSIONER PLATT ADELAIDE, 26 JULY 2018

Application for an unfair dismissal remedy - s.587 application - whether binding settlement reached - s.587A application - application dismissed.

Summary

[1] This decision deals with an application by the Employer, pursuant to s.587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an unfair dismissal application lodged by Mr S on 22 March 2018.

[2] The key issue in these proceedings is whether the parties reached a binding settlement (within the meaning of the relevant authorities) in respect of the unfair dismissal application made by Mr S during conciliation proceedings before Deputy President Binet.

[3] The parties appeared before me on 23 July 2018. Mr S was self-represented and appeared by telephone and the Employer was represented by its employee relations manager. An application for the Employer to be represented by a lawyer pursuant to s.596(2) of the Act was refused, on the basis that whilst there was a factual dispute the matter was not complex and the case law on the topic was well settled.

[4] The conciliation process was confidential and there is no dispute that any settlement was intended to be confidential. In order to determine if a binding settlement was reached it will be necessary for me to discuss the terms discussed. In order to preserve the confidentiality of the discussions, on 23 July 2018, I made an Order by consent pursuant to s.593(3)(c) prohibiting the publication of material which identified or tended to identify the parties. As a result of this order, I will refer to the Applicant as ‘Mr S’ and the Respondent as ‘the Employer’.

Background

[5] The following matters were not in dispute:

[6] That the s.394 application was conciliated by Deputy President Binet. The Applicant and the representatives of the Respondent participated.

[7] A settlement was reached and was recorded by the Employer’s representative (Ms D) in the following terms:

[8] Subsequent to conciliation, correspondence was exchanged as to the impact of making the payment pre or post the end of the 2017/2018 financial year.

[9] On 28 May 2018, Mr S advised that as there would be no difference in the net sum received based on the date of payment, he sought payment before 30 June 2018.

[10] On 29 May 2018, the Employer provided Mr S with a draft agreement and advised that if the agreement was accurate they would provide a final version for execution.

[11] On 2 June 2018, Mr S advised there was one part of the draft agreement that he did not agree with, specifically section (n) which related to the mutual non-disparagement clause. In essence, Mr S contended that the provision in the draft settlement agreement did not reflect the agreement reached at the conciliation conference.

[12] A further conciliation conference was conducted by Deputy President Binet on 6 July 2018 to try and resolve the outstanding issue. The issue was not resolved.

[13] On 5 July 2018, Deputy President Binet issued Directions for the Hearing of the s.394 application.

[14] On 9 July 2018, the Employer lodged a s.587 application.

[15] The file was allocated to me on 10 July 2018. Directions were issued for filing of material and a Hearing was set for 23 July 2018.

Evidence

[16] At the Hearing, the Employer appeared by video link and Mr S appeared by telephone.

[17] Ms D who represented the Employer during the conciliation process provided a statement, copies of her notes of the settlement made during the first conciliation conference, and post conciliation correspondence with Mr S, including copies of the proposed draft agreement. 1

[18] Mr S did not provide any written submissions or a statement but gave verbal evidence.

[19] There are no relevant factual disputes.

[20] There is no dispute that the agreement to settle the matter was reached at the first conciliation conference as recorded in Ms D’s notes and detailed at paragraph [7] above.

[21] There is no dispute that Mr S accepted the terms of the draft agreement with the exception of the provision concerning non-disparagement.

[22] The Employer contends that a binding settlement has been reached and the existence of such settlement acts as a barrier to the continued pursuit of Mr S’s s.394 application and as a result his claim has no prospects of success within the meaning of s.587(1)(c) of the Act. This approach is consistent with the authority of Australian Postal Corporation v Gorman. 2

[23] The principles to be adopted in determining if a binding settlement has been reached can be found in a review of Masters v Cameron 3 and as confirmed in Subeg Singh v Sydney Trains.4 In essence, if the parties to a matter reach finality and agree on the essential terms of the bargain, and they intend to be immediately bound by those terms, the law recognises that they have reached a binding settlement even if they propose to restate the terms in a fuller and more precise form that are not different in effect.

[24] In my view, the parties to this matter reached a binding settlement at the first conciliation conference chaired by Deputy President Binet and as recorded by Ms D. The draft settlement agreement which was agreed by Mr S, but for the issue raised, restated the terms agreed in a fuller or more precise form.

[25] I accept Mr S’s contention that the clause in the draft agreement concerning non-disparagement did not accord with the settlement recorded by Ms D. I find that the agreement reached on that point was simply that the parties would not disparage each other and the social media material published by Mr S would be removed. The draft agreement could have been worded in a more comprehensible matter. This is illustrative of the problems that can occur when the proposed draft agreement is not made available at the conciliation conference, particularly if it departs from the Fair Work Commission’s template.

[26] As a result of my finding that a binding settlement had been reached in the terms contained in paragraph [7] above, and that it was agreed that there would be a mutual release and a Notice of Discontinuance lodged, I find that Mr S’s s.394 application has no prospects of success, and that application is dismissed.

[27] A copy of the Order 5 reflecting my decision will be issued today.

COMMISSIONER

Appearances:

Mr S.S. the Applicant.

Mr M.H. on behalf of the Respondent.

Hearing details:

2018.

Adelaide.

23 May.

Printed by authority of the Commonwealth Government Printer

<PR609286>

 1   Exhibit A1.

 2 [2011] FCA 975.

 3 (1954) 91 CLR 353.

 4   [2017] FWCFB 4562.

 5   PR609285.