Upendrakumar Patel v Trinity College Gawler Inc T/A Trinity College Gawler

[2021] FWC 4832

[2021] FWC 4832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Upendrakumar Patel
v
Trinity College Gawler Inc T/A Trinity College Gawler
(U2021/2860)

COMMISSIONER BISSETT MELBOURNE, 13 AUGUST 2021

Application for an unfair dismissal remedy – request to re-open application – binding settlement agreement reached – no reasonable prospects of success – application dismissed pursuant to s.587 of the FW Act.

[1] Mr Upendrakumar Patel (the Applicant) has made an application to the Fair Work Commission for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act). The Applicant alleges he was dismissed by Trinity College Gawler Inc T/A Trinity College Gawler (the Respondent) with effect from 6 April 2021.

[2] The application was subject to conciliation and Commission records indicate that the matter settled by agreement at staff conciliation on 28 April 2021, with correspondence to this effect issued on this date. The parties each had a three day “cooling off” period in which they could opt out of the terms of the agreement.

[3] On 3 May 2021 the Applicant contacted the Commission requesting an extension of the three day cooling off period. The Commission responded that day to the Applicant and advised him that the cooling off period could not be extended by the conciliator and that if he did not wish to accept the settlement he must advise the Commission by the close of business that day (Monday 3 May 2021). As no response was received from the Applicant, the matter was closed with the Commission.

[4] On 19 June 2021 the Applicant contacted the Commission to request his application for unfair dismissal proceed to arbitration.

[5] On 5 July 2021 in a mention held before me in relation to the request of the Applicant it was apparent that there remained a dispute between the parties as to whether an agreement was reached at conciliation. The Respondent argued that agreement had been reached and that it had complied with its obligations. The Applicant argued that agreement was not reached. In light of the possible existence of an agreement between the parties, I advised the Applicant that I was considering dismissing his application under s.587 of the FW Act because it had no reasonable prospects of success.

[6] Prior to doing so I sought submissions from the Applicant and the Respondent as to whether a binding settlement agreement had been reached and whether the application therefore had no reasonable prospects of success. Both the Applicant and Respondent provided written submissions. Mr Patel indicated, in addition, that he wished to be heard on the matter before me. A hearing was held by Teams on 29 July 2021.

[7] Prior to the hearing I granted the Respondent permission to be represented by a lawyer pursuant to s.596(2) of the FW Act.

SUBMISSIONS AND EVIDENCE

[8] The Applicant agreed that he had attended the conciliation of his unfair dismissal application by phone on 28 April 2021. He said that the conciliation only went for 15 minutes but then said he was not sure how long it had gone on for. He said that there was no time, at the conciliation, for negotiations.

[9] The Applicant also agreed that at the commencement of the conciliation he was asked if he was prepared to proceed with the conciliation. He advised the conciliator that he was prepared to continue.

[10] The Applicant said that in the conciliation he originally asked for 6 weeks’ pay but then said that he wanted his job with the Respondent back.

[11] The Applicant’s evidence is that following the conciliation he received a written copy of the terms of settlement but did not sign it. He agreed that he emailed the conciliator on 3 May 2021 and requested an extension of the cooling off period so he could get some legal assistance. He also agreed that he received an email form the conciliator in reply that day in which the conciliator said that the cooling off period could not be extended but that if the Applicant did not wish to continue with the agreement he should advise the conciliator of that on that day. The Applicant agreed that he did not reply to the conciliator but said that he thought that if he did not respond or sign the agreement then the agreement would not be made.

[12] The Applicant said that he had not signed the agreement and hence considered it was not made. He said he did not sign it as he had not had time to get any legal advice in relation to the settlement. He also said that he had been ill. In this respect the Applicant did produce a medical certificate which indicated that he had a Covid infection and that rest was recommended for him from 24 April 2021 to 20 May 2021. The Applicant does not say (and did not raise) that this prevented him from participating in conciliation or from considering the settlement proposal conveyed to him.

[13] The Applicant agreed that he did not tell the Respondent he had changed his mind on the settlement. He also agreed that he had received the payment the Respondent agreed to make under the settlement. He said he had not returned the money as he did not have the bank account details of the Respondent.

[14] The Applicant said that if an agreement was made the Respondent has breached its terms.

[15] Ms Haar, solicitor for the Respondent, gave evidence of the conciliation (which she had attended with the Respondent). She said that the Respondent team received a call from the Commission at 1.45pm but there were some problems contacting the Applicant. The conciliation proper commenced at 2.01pm and concluded at 3.10pm. She said that the conciliation commenced in a group session and then moved into private sessions with the conciliator who moved between the parties putting offers and counter offers. Ms Haar’s evidence is that the group session commenced at 2.01pm and concluded at 2.30pm. The conciliator then spoke to the Applicant privately, resumed with the Respondent privately at 2.39pm until 2.46pm then spoke to the Applicant privately again before returning to the Respondent at 2.55pm. After a further conference with the Applicant and brief discussion with the Respondent privately at 3.02pm the parties resumed in group session at 3.03pm.

[16] On resumption of the conciliation at 3.03pm Ms Haar’s evidence is that the conciliator read through what had been agreed between the parties. The conciliator advised that the matter would be subject to the standard terms and was in full and final settlement of the claim of unfair dismissal by the Applicant. The terms of settlement read out by the conciliator were that: the Applicant would resign effective 5 April 2021; the Applicant would receive a payment of $5,503.32 gross taxed as an ETP within 7 days of signing by EFT; the Applicant would receive a statement of service which would include positive statements regarding performance; mutual release provisions not affecting workers’ compensation or superannuation; confidentiality; and non-disparagement. Further, there would be a notice of discontinuance. 1

[17] Ms Haar agreed that the Applicant originally sought compensation of 6 weeks’ pay. He did raise the issue of reinstatement but that was ejected by the Respondent prior to the settlement being reached.

CORRESPONDENCE BETWEEN THE APPLICANT AND COMMISSION

[18] Whilst the Applicant did not put his correspondence with the Commission into evidence I am satisfied that I can have regard to the correspondence sent to the Applicant and from him to the conciliator as held on the Commission files. When this correspondence was raised with the Applicant during the hearing he did not dispute it.

[19] Following conclusion of the conciliation the Applicant apparently had some further contact with the conciliator. The conciliator emailed the Respondent in relation to a contact person for the purposes of the statement of service other than that agreed to in the conciliation. This was apparently resolved and the terms of the settlement between the Applicant and Respondent amended.

[20] On 3 May 2021 the Applicant sent the following email to the conciliator, received at the Commission at 5.29am:

“Hi Mr. Ross,

G’day,

Thanks for the amendment of clause 3.6. Also, I would like to have a draft statement of service beforehand. Due to some covid and hospital issues, I was not able to get a legal advice about this agreement and litigation so I would like to extend cooling off date for at least week or so if possible. As during the conciliation, you said instead of lump sum amount, FWC can ask to pay for the loss of wages if I will get a job lesser than my current? Could you please let me know what are the other options as well?

I have home repayment and other financial burdens so would like to make sure the right decision before I sign the agreement.

I hope you understand my situation and concern.

Thank You,

Kind Regards,

Upendra”

[21] The conciliator replied at 8.53am that day (emphasis in original):

“Dear Upendra

I have no discretion to extend the cooling off period . If you do not wish to accept the settlement you must advise me by the close of business Monday 3 May 2021. I will then forward the matter to formal hearing before member of the Commission

Regards”

[22] The Commission received no further correspondence from the Applicant until 9 June 2021 when he sent the following email to the conciliator:

“G’day,

Sorry for the late response but I was sick and couldn’t get back to you before. I just want to know if I want to arbitrate this matter is it possible now? I am coming back before 6 months time as I committed so.

Thanks

Upendra”

CONSIDERATION

[23] I accept, in this case, that a binding settlement agreement was reached between the parties. Whilst it was not signed by the Applicant this does not change its binding force.

[24] In reaching my conclusion I prefer the evidence of Ms Haar as to timing and process of the conciliation to the evidence of the Applicant that conciliation only went for 15 minutes. I also accept Ms Haar’s evidence that, at the conclusion of private session the conciliator brought both parties together and stepped through the terms of the settlement reached between the parties. I note that the Applicant does not dispute the actual terms apparently agreed as noted by Ms Haar and as set out in the settlement document.

[25] I have also taken into account that, within a short time after the conclusion of the conciliation the Applicant sought a change to what had been agreed in relation to the contact person for the statement of service. This was agreed to by the Respondent on 29 April 2021 and, I accept, communicated to the Applicant.

[26] Further, I accept that the Applicant was aware that the cooling off period in relation to the agreement reached expired on 3 May 2021 (there being a weekend between the conciliation and expiration of the cooling off period). This much is evident from his correspondence of 3 May 2021 in which the Applicant sought an extension to that cooling off period. The Applicant was advised within 3½ hours that he could not get an extension to the cooling off period. It was emphasised in that reply to the Applicant that he needed to advise that day if he no longer wished to proceed with the agreement. The Applicant’s silence, in the face of clear and explicit instructions as to what was required of him if he did not wish to proceed, can reasonably be taken as acceptance. I am further satisfied with my conclusion as, to have commenced the cooling off period, the Applicant must have clearly indicated his agreement to the accuracy of the terms of settlement as laid out by the conciliator in joint session at the end of the conciliation on 28 April 2021.

[27] It is well established that an agreement can be reached even in circumstances where a party has not signed the terms of settlement.

[28] In Zoiti-Licastro v Australian Taxation Office (Zoiti-Licastro) 2 the Full Bench considered if it could be that an agreement could be reached when the written terms of that agreement had not been signed. The Full Bench concluded that “focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed.”3

[29] The determination of the existence of an agreement is a matter of fact. Whether an agreement was made is to be discerned objectively considering the actions of the parties.

[30] In Singh v Sydney Trains (Singh) 4 the Full Bench of the Commission set out the legal principles relevant to the question of whether a binding settlement agreement had been reached. As is relevant to the matter before me they are as follows:

“[45] The central issue in this appeal requires consideration of whether the Deputy President correctly applied legal principles relevant to the question of whether a binding settlement agreement had been reached between Mr Singh and Sydney Trains.

[46] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited: 5

“It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337).”

…

[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 6

[52] The phrase “‘in principle’ agreement” or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract. 7 However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.8 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.9

[53] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. 10 First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.11

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them.” 12

[31] I respectfully agree with this approach and have been cognisant of these principles in reaching my decision.

[32] I have, in particular, considered the conduct of the parties following conciliation. I accept that, subject to the Applicant exercising his rights under the cooling off period, the parties reached an agreement before the conciliator as to the terms on which the unfair dismissal application would be settled. The Applicant sought a change to those terms (in relation to the contact person) and this was accepted by the Respondent. The Applicant then queried an extension to the cooling off period as he had not been able to obtain legal advice but only made this query to the conciliator and did not advise the Respondent that he wished a longer period to consider the matter (and there was nothing stopping him doing so). The Applicant was advised in clear and concise terms that this was not within the conciliator’s power to grant. The statement from the conciliator that the Applicant should advise by close of business that day if he did not wish to proceed with the settlement would have left the Applicant in no doubt as to the status of the agreement if he did not advise the conciliator that he did not accept the terms.

[33] Had the Applicant wished to get advice as to his application for unfair dismissal he should have (and could have) advised the conciliator that he did not wish to proceed with the settlement or asked the conciliator if he would give him more time to consider the settlement. He did neither and cannot now say that he did not reach agreement.

[34] I am satisfied that the agreement reached was of the first type mentioned in Masters v Cameron in that “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.” 13

CONCLUSION

[35] Having found that an agreement was reached between the parties I have decided that I should dismiss the application for unfair dismissal as it has no reasonable prospects of success.

[36] In Australia Postal Corporation v Gorman 14 Besanko J said:

31 An accord and satisfaction extinguishes any cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to subsequent litigation of the original claim: it is an answer to the claim.

…

33 There is nothing in the [Fair Work] Act which suggests that an accord and satisfaction should not be recognised…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 a cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.

[37] Section 587 of the FW Act provides that the Commission may dismiss an application:

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[38] In this case I am satisfied that the Applicant reached an agreement with the Respondent in conciliation. Further, on contacting the Commission during the 3 day cooling off period the Applicant was clearly reminded that if he did not wish to proceed with the settlement he should advise the conciliator by the end of that day. Despite this, and for reasons known only to himself and not explained at the hearing of this matter, the Applicant decided that if he did not sign the settlement document then there would be no agreement.

[39] In circumstances where a binding settlement agreement was reached I am satisfied that for the reasons set out above in Gorman, the unfair dismissal application has no reasonable prospect of success and, for this reason, is dismissed pursuant to s.587(1)(c) of the FW Act. An order 15 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR732570>

 1   See electronic court book, p 40

 2 (2006) 154 IR 1

 3   Ibid at [12]

 4   [2017] FWCFB 4562

 5 [2015] NSWCA 313 (Pavlovic) at [15]

 6   Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads; (1975) 1 BPR 9147 at 9149 per Glass JA

 7   Stephenson v Dwyer [2006] NSWSC 1439 at [37]

 8   Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 at [91]

 9   Ibidat [91]

 10   Masters v Cameron (1954) 91 CLR 353

 11   Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622

 12   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432

 13   Masters v Cameron

 14 (2011) 211 IR 450

 15   PR732602