Saloshna (Vanessa) Naicker v Genevieve Toop T/A Epworth Freemason
[2017] FWC 1519
•27 MARCH 2017
| [2017] FWC 1519 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Saloshna (Vanessa) Naicker
v
Genevieve Toop T/A Epworth Freemason
(U2016/12795)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 27 MARCH 2017 |
Application for relief from unfair dismissal – matter settled – application dismissed pursuant to s.587 of the Act.
[1] On 20 October 2016, Ms Saloshna (Vanessa) Naicker made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). In her F2 Application form, Ms Naicker stated that she was dismissed by Genevieve Toop T/A Epworth Freemason (Epworth Freemason) on 29 September 2016.
[2] The matter was referred to conciliation on Friday 25 November 2016. At conciliation Epworth Freemason was represented by Mr N Ruskin of K & L Gates and Ms Naicker was self-represented. Following the conciliation, correspondence dated 25 November 2016 was sent to the parties by the conciliator relevantly stating:
“Thank you for your involvement in the conciliation conference for this matter. I confirm that the matter has settled with the substantive elements of the agreement being:
• payment of a gross amount of $4000 net
• full and final settlement of all matters relating to employment (this does not extend to matter relating to treatment as a patient)
I confirm that the terms of settlement are to be sent out by K & L Gates (Mr Nick Ruskin)
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 the parties by Wednesday 30 November 2016 the matter is resolved in the terms attached and the file will be closed.
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 Fair Work Commission (the Commission)…”
[3] Ms Naicker was provided with a copy of a draft settlement agreement by Mr Ruskin on Monday 28 November 2016. At approximately 9:00am on Wednesday 30 November 2016, Ms Naicker telephoned the conciliator and indicated that she needed more time to consider the draft agreement that had been prepared by Mr Ruskin. Following this advice, the conciliator sent email correspondence to all the parties at 9:19am advising the following:
“Vanessa has rung to say that she needs further time to seek advice on the draft deed. I am able to hold the file until COB Friday 2 December 2016. If the matter remains unresolved at that time I will refer the matter for arbitration.”
[4] In the early afternoon on Friday 2 December 2016, Ms Naicker attended the Registry of the Commission and advised that she had decided not to sign the terms of settlement. Both Epworth Freemason and Mr Ruskin were advised of this by an email from the conciliator at 2:21pm which stated:
“Vanessa just turned up at the registry. She has decided not to sign the terms of settlement. I have put you down for 2-3 witness. Arb weeks for Feb will be weeks commencing 13 and 27. If either of those week sis [sic] not suitable let me know.”
[5] As such, the matter was subsequently referred by the conciliator and listed for Arbitration Conference/Hearing on 1-3 February 2017. A Notice of Listing was issued by the Commission on 6 December 2016, containing Directions that Ms Naicker file her material by 28 December 2016 and Epworth Freemason file its material in reply by 18 January 2017.
[6] On 8 December 2016, Epworth Freemason sent an email to Ms Naicker noting her decision not to sign the settlement agreement and proceed with her application. In this correspondence it further stated that:
“…You did not recant within the 3 day cooling off period. On that basis you are bound by the terms of the settlement struck at the telephone conciliation conference, which bars you from continuing with your application. The Settlement Agreement reflects the terms of settlement-if you consider that it does not, please indicate which part of the draft Settlement Agreement you consider requires amendment.”
[7] Epworth Freemason subsequently advised Ms Naicker that if she did not confirm she would honour the terms of the settlement and notify the Commission by close of business on 12 December 2016, it would file an objection to her application.
[8] On 12 December 2016, Ms Naicker’s newly appointed representative, Mr V Da Gama, replied to this correspondence, asserting that Ms Naicker was not bound by the settlement agreement as she notified the conciliator that she wished to proceed to hearing prior to the expiry of the cooling off period. In this regard, it was contended that the initial three day cooling off period had been extended by the conciliator, in his email sent at 9:19am on 30 November 2016, until close of business on 2 December 2016.
[9] Epworth Freemason responded on 20 December 2016, referring to a reply email it received from the conciliator at 1:56pm on 30 November 2016 following its query as to the effect the concerns raised by Ms Naicker would have on the cooling off period, in which the conciliator stated that “cooling off expires at COB today…”. As such, Epworth Freemason maintained its position that Ms Naicker is both bound to the terms of the agreement reached at the conciliation and consequently barred from proceeding with her application further. Epworth Freemason then advised Ms Naicker that if she did not confirm that she would honour the terms of the agreement by close of business on 16 December 2016, an objection to her application would be filed with the Commission.
[10] On 28 December 2016, Ms Naicker filed an Outline of Submissions and Witness Statement in support of her application.
[11] On 5 January 2017, the Commission attempted to telephone Epworth Freemason to inquire as to the number of witnesses it intended to rely upon at hearing. Epworth Freemason returned the call on the same day and foreshadowed its intention to apply for the matter to be dismissed on the basis that it had settled at conciliation. Epworth Freemason further indicated that it would like its application to be considered prior to its submissions being due on 18 January 2017. The Commission required this application to be made as soon as possible.
[12] A Form F4 – Objection to unfair dismissal application was received by the Commission on 13 January 2017. In this, Epworth Freemason stated that a binding settlement agreement was reached between parties at conciliation and Ms Naicker had failed to notify the Commission of her intention not to be bound by the agreement within the relevant three day cooling off period. As such, Epworth Freemason requested that Ms Naicker’s application be dismissed pursuant to s.399A(1)(c) of the Act because of Ms Naicker’s failure to discontinue her application after a settlement had been concluded.
[13] On 16 January 2017, Ms Naicker attended the Commission to inquire as to the status of her matter. Ms Naicker was advised that the s.399A application made by Epworth Freemason would need to be determined before her application could proceed further. The Commission also advised Ms Naicker that she would be required to file submissions in response to the s.399A application.
[14] An amended Notice of Listing was sent to the parties on 17 January 2017 vacating the 1-3 February 2017 Arbitration Conference/Hearing dates. Ms Naicker was sent additional correspondence directing her to file submissions as to why her application should not be dismissed by close of business on 27 January 2017.
[15] In her submissions filed on 24 January 2017, Ms Naicker contended she is not bound by the agreement due to the conciliator granting an extension to the cooling off period until close of business on 2 December 2016, and her advising the Commission prior to this time of her intention to proceed with her matter to arbitration. She also submitted Epworth Freemason did not take issue with the extension of time granted by the conciliator and, as such, is estopped from asserting that a binding settlement was reached between the parties at the conciliation.
[16] The Commission sent an email to Epworth Freemason on 15 February 2017, advising that it had until close of business on 22 February 2017 to provide submissions in support of its s.399A application.
[17] Epworth Freemason provided its submissions on 21 February 2017 and asserted:
● A binding settlement agreement was reached between the parties at conciliation which was subject only to Ms Naicker notifying her decision not to be bound within the three day cooling off period, which she did not do;
● The conciliator did not purport to extend the cooling off period on 30 November 2016 and only stated he would “hold the file” until 2 December 2016. In any event, he could not extend it;
● The conciliator confirmed in his email to Mr Ruskin at 1:56pm on 30 November 2016 that the cooling off period would expire at close of business 30 November 2016;
● The content of email correspondence between Mr Ruskin and the conciliator on 30 November 2016 indicates that Ms Naicker’s concerns went to “the scope or wording of the draft deed and not the settlement itself”;
● The parties are entitled to continue to negotiate the wording of deeds subsequent to the cooling off period but not to renegotiate or renege on the deal struck; and
● The agreement reached at conciliation remained in effect and binding.
Consideration
[18] 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
[19] Ms Naicker did not indicate she did not wish to be bound by the settlement agreement prior to the expiry of the three day cooling off period. She simply indicated she wanted further time to seek advice on the terms of the draft “deed”. However, Ms Naicker contends she is not bound by the settlement agreement due to the conciliator having granted an extension to the cooling off period until close of business on 2 December 2016 and her having advised the Commission of her intention to proceed with her matter to arbitration prior to this time.
[20] I am not persuaded the conciliator extended the three day cooling off period. Apart from not being able to do this, the conciliator’s advice to the parties was not to this effect. He simply indicated that he was able to hold the file for a further two days.
[21] Epworth Freemason did not consider there had been an extension of the three day cooling off period and did not agree to one. In response to the email the conciliator had sent to the parties at 9:19am on 30 November 2016, Epworth Freemason sent an email to the conciliator at 1:47pm, in which it sought confirmation that the cooling off period expired that day and was advised it expired at the close of business. In these circumstances, I do not consider that Epworth Freemason is estopped from asserting that a binding settlement was reached at the conciliation. The situation may have been different had the conciliator asserted the three day cooling off period had been extended and Epworth Freemason remained silent.
[22] I am not persuaded that the agreement was only an in-principle agreement, subject to the parties reaching agreement on the terms of a deed of release. The letter to the parties from the conciliator on 25 November 2016 indicated that the settlement agreement comprised a monetary payment in full and final settlement of all matters pertaining to Ms Naicker’s employment without extending to the matter relating to the treatment of Ms Naicker as a patient. The chain of email correspondence between Epworth Freemason and the conciliator indicates Epworth Freemason had attempted to reflect the settlement agreement reached in the terms of the document it had drafted and exchanged. Adopting the approach from the Full Bench of the Commission in Zoiti-Licastro v Australian Taxation Office, 3 I consider:
● To focus, as Ms Naicker has done, on the settlement document misses the point and the real question is what was agreed at the conciliation; and
● If Ms Naicker had an objection to particular terms, the proper course would have been for her to “simply indicate that they were not part of the agreement.” 4
[23] As such, I consider that if the proposed wording in the settlement terms was an issue for Ms Naicker, as was suggested by the conciliator in his email to Epworth Freemason at 1:56pm on 30 November 2016, she could and should have flagged this for further discussion. However, Ms Naicker never advised Epworth Freemason why she found the proposed wording objectionable and nor did she suggest any alternate wording she considered would reflect the settlement agreement reached.
[24] I am therefore satisfied the parties reached an agreement by way of a settlement at conciliation on 25 November 2016, that the agreement was in the nature of the first or second type discussed in Masters v Cameron, it became binding upon expiration of the three day cooling off period and there was no agreement between the parties to extend the cooling off period. The settlement agreement reached by the parties at the conciliation, outlined in the conciliator’s letter to the parties dated 25 November 2016, was for the payment of a gross amount of $4000 net in full and final settlement of all matters relating to Ms Naicker’s employment, without extending to the matter relating to her treatment as a patient. Although the parties proposed having written terms of settlement, at no stage prior to the expiry of the three day cooling off period had Ms Naicker indicated she did not wish to be bound by the terms of the settlement agreement they had reached at conciliation.
[25] In Australia Postal Corporation v Gorman, 5 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.6
[26] 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.” 7
[27] 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.
[28] 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.
[29] I have found that on 25 November 2016, 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
1 (1954) 91 CLR 353.
2 Ibid at [360]-[361].
3 PR967544.
4 Ibid at [12].
5 [2011] FCA 975.
6 Ibid at [31].
7 Ibid at [33].
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