DECISION

Fair Work Act 2009 s.365—General protections (consent arbitration)

Stephen Baskin
v
Friends Resilience Pty Ltd
(C2017/3229)

DEPUTY PRESIDENT DEAN

SYDNEY, 24 NOVEMBER 2017

Application to deal with a general protections dismissal dispute by consent arbitration – offer and acceptance - whether binding settlement reached at conciliation – application dismissed.

[1] On 6 April 2017, Mr Stephen Baskin made a general protections application pursuant to s.365 of the Fair Work Act 2009 (the Act). Mr Baskin claimed that his dismissal by Friends Resilience Pty Ltd (the Respondent) on 22 March 2017 was in contravention of sections 340, 343, 344 and 358 of the Act.

[2] A conciliation conference with a Fair Work Commission conciliator was held on 22 May 2017 by telephone. On 2 June 2017, a certificate was issued by me pursuant to s.368 of the Act to certify that the Commission was satisfied that all reasonable attempts to resolve the dispute had been, or are likely to be, unsuccessful.

[3] On 15 June 2017, the parties notified the Commission of their consent to arbitration of the general protections dispute under s.369 of the Act.

[4] The Respondent advised the Commission by email on 19 June 2017 that there was disagreement between the parties as to whether the application was settled at the conciliation conference. The parties agreed that this issue should be dealt with before the matter was heard on its merits, because the determination of the preliminary issue may avoid onerous evidentiary burdens incumbent on parties in a merits hearing. I agreed with this approach.

[5] In summary, the Respondent contended that Mr Baskin was barred from any further proceedings, and his application should be dismissed under s.587 of the Act, because of the settlement it alleged was reached during the conciliation conference. Mr Baskin contended that while a verbal agreement was reached to settle his claim, at no time was he informed by the Conciliator that the verbal agreement was to be binding. 1

[6] The matter was heard in Brisbane on 6 September 2017. At the hearing both parties were given permission to be legally represented under s.596(2) of the Act. Mr G McCartney of Simmons & McCartney appeared for Mr Baskin and Mr J Wells of King & Wood Mallesons appeared for the Respondent.

[7] During the proceedings, I indicated to the parties that the power of the Commission to dismiss a matter pursuant s.587 of the Act, on the ground that it has no reasonable prospects of success, did not extend to general protections applications because of s.587(2). However, in the context of the matters raised, I indicated further that I considered I could proceed to arbitrate the matter pursuant to s.369(2) of the Act and determine whether a binding settlement had been reached at conciliation. Both parties concurred with this view. 2

[8] There is no dispute, and I am satisfied, that I can deal with this application pursuant to section 369 of the Act, including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 5410
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

Stephen Baskin sought to have a general protections dismissal dispute resolved through a consent arbitration. Friends Resilience Pty Ltd was the respondent in this matter, which was heard in the Fair Work Commission. The primary legal issue before the court was whether a binding settlement had been reached during the conciliation process. This was crucial as it would determine whether the application for consent arbitration could proceed. The court needed to examine the communications between the parties to ascertain if there was a clear offer and acceptance that constituted a binding agreement.

The court closely examined the evidence, including the minutes of the conciliation meeting and the subsequent correspondence. It found that while there were negotiations and expressions of intent, there was no unequivocal offer accepted by both parties. The court held that without a clear and unambiguous acceptance of an offer, no binding settlement had been reached. Consequently, the application for consent arbitration was dismissed as it lacked the necessary agreement from both parties. This decision underscored the importance of precise communication in the conciliation process for any settlement to be considered binding.

Orders