Wayne McArthur v Veolia Environmental Services Australia

[2020] FWC 5736

[2020] FWC 5736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne McArthur
v
Veolia Environmental Services Australia
(U2020/11081)

COMMISSIONER BISSETT MELBOURNE, 28 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Mr Wayne MacArthur (Applicant) made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 on 17 August 2020 in which he claimed he had been unfairly dismissed from his employment with Veolia Environmental Services (Australia) Pty Ltd (Respondent). The Respondent raised a jurisdictional objection to the application in that it said the dismissal was a result of genuine redundancy.

[2] The application was subject to conciliation before a staff conciliator on 4 September 2020 following which the file was subsequently closed.

[3] On 16 September 2020 the Applicant sent an email to the staff conciliator in which he raised matters in respect to things that occurred post the conciliation that he believed effected the integrity of the conciliation. The Applicant advised that he considered he had “been denied the opportunity to proceed with my unfair dismissal claim due to [the Respondent’s] misleading statements and want to continue my claim against [the Respondent].”

[4] The file was subsequently referred to me and on 23 September 2020 my chambers wrote to the parties and sought submissions from each as to whether a binding settlement agreement had been reached. That letter indicated that I was considering dismissing the application on my own motion pursuant to s.587 of the FW Act as, if a binding settlement agreement had been reached, the application had no reasonable prospect of success.

[5] The parties were given until 7 October 2020 to file any submissions. Submissions were received from the Applicant, the Respondent and the TWU who was the Applicant’s representative at conciliation. The parties all indicated that they agree to the Commission determining the matter on the basis of the written material filed by each.

SUBMISSIONS

[6] The Applicant said he attended the conciliation conference on 3 September 2020 with the objective of having the Respondent considering him for redeployment into the Patho Landfill Weighbridge Attendant/Administrative Support Officer role (the Position). Despite comments to the contrary the Applicant “refused to accept that the position did not exist or that it was unreasonable for [the Respondent] to redeploy myself to a position within the Company.”

[7] The Applicant submitted that at this point his representative (TWU) raised the issue of non-payment of the Applicant’s appropriate long service leave entitlements. He said that Mr Hesketh of the Respondent agreed to investigate that matter.

[8] The Applicant said that he does not believe that at any stage he agreed to settle his unfair dismissal application. In particular he submitted that:

•  There was no offer [from the Respondent to settle] and acceptance [of such by him];

•  There was no meeting of the minds;

•  The purported agreement is void or voidable;

•  He was disadvantaged by statements of the Respondent at conciliation and did not have an opportunity to put a reasoned argument to the claim;

•  The Respondent lacked good faith.

[9] The Applicant submitted that in the days after the conciliation he became aware that the Respondent intended to advertise the Position and that on 16 September 2020 it was advertised on SEEK. He submitted that the Respondent had previous knowledge of the Position at the time of the conciliation but continued to deny its existence.

[10] The Applicant further submitted that the Commission should not dismiss an application if there is a question to be answered on the facts or the law. Further, that the Commission should sparingly dismiss an application. 1

[11] The TWU submitted that, at conciliation, the Applicant agreed to resolve the matter by way of an agreed monetary amount although no written settlement agreement has been executed.

[12] The TWU submitted that, prior to the execution of a settlement agreement, the Applicant became aware of a “material fact” (the advertising of the Position) that the Respondent should have alerted the Applicant to.

[13] The TWU said that it was the Applicant’s intention to settle on the basis that there was no alternative position available into which he could be redeployed. In this respect the TWU said the Respondent misled the Applicant.

[14] The TWU submitted that the existence of a settlement agreement is a question of fact and that there could be no settlement agreement where one party has not negotiated in good faith. 2 A failure to relist the matter for hearing in the circumstances would deny the Applicant an opportunity to prosecute the merits of his case.

[15] For these reasons the TWU submits that the Commission should not dismiss the application but rather list the matter for hearing.

[16] The Respondent said that, during conciliation, it explained the process with respect to the decision to declare a number of positions redundant, including that of the Applicant. It confirmed that:

•  There were no positions at the time to which the Applicant could be redeployed,

•  The Driver positions available at the time were not within the Applicant’s capability;

•  There is nothing precluding the Applicant from being re-employed at some stage in the future by the Respondent;

•  The Respondent would maintain contact with the Applicant in order to advise him of any vacancies that arose.

[17] The Respondent said that at the time the Applicant was dismissed the Position was not an approved role and a decision had been taken not to proceed with creating it. The role had subsequently been approved and it is the Respondent’s intention to redeploy an Administration Support Officer into the role. The Respondent said it was not aware at the time of the conciliation that the role would be approved.

[18] The Respondent said that, during the conciliation conference it was realised that the Applicant was actually employed in Moama (NSW) and was therefore entitled to long service leave in accordance with the NSW Long Service Leave Act 1955 and agreed to pay the Applicant this entitlement.

[19] The Respondent said that the parties agreed at conciliation that there was no need for a settlement agreement and the matter was settled at conciliation.

CONSIDERATION

[20] Whether there was a binding settlement agreement between the parties in relation to this matter is a question of fact and will be dependent on whether there was some exchange between them that they agreed would settle the application for unfair dismissal. The relevant time at which the assessment is to whether an agreement was reached between the parties, in this case, is the time of the conciliation. This is because the parties have agreed that there was no commitment to, and in fact it was agreed that there was no need to, put any agreement in writing.

[21] In Singh v Sydney Trains 3 the Full Bench of the Commission considered the legal principles relevant to the offer and acceptance of a settlement proposal and whether a binding settlement had been reached. The Full Bench found:

[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: 4 

“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).”

[47] The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed. 5 Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties' solicitors.

[48] An offer and acceptance must precisely correspond. The following principles are relevant to this requirement:

•  An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered. 6 

•  An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance. 7 

•  An acceptance will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree’s own words the effect of the offer. 8 

•  Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 9  For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.10

•  Similarly, if a purported acceptance of an offer merely includes the “machinery of working out what was meant by the offer, it is on the same plight as a request for information”. 11  Such a request for information does not revoke the offer and may constitute acceptance of the offer.

[49] Ultimately the question is whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered.” 12  Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.13

[50] A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. 14  A counter-offer accepted by the original offeror creates a binding agreement.15

[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. 16 

[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. 17  However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.18 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”.19

[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. 20  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.21

[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. 22 

[22] I respectfully adopt these principles.

CONSIDERATION

[23] In this case it is apparent that the parties agreed that there was no need to put anything in writing following the conciliation. The Respondent says it was agreed this was not necessary, the TWU says that prior to a deed/agreement being executed and the application discontinued the question of the Position arose and the Applicant says there was no offer for him to agree to although the Respondent, having realised the Applicant was employed in New South Wales, agreed to pay his entitlement to long service leave pursuant to the relevant law applying in New South Wales.

[24] Much of the material put to me by the parties is in relation to whether the Position existed and, if it did, when it was created. None of this helps me to determine if a binding agreement was reached between the parties to settle the unfair dismissal application. By virtue of the submissions of the Applicant and of the TWU who represented him, a key issue in dispute is whether the Respondent acted in good faith in what it put in conciliation in relation to the existence (or otherwise) of the Position. On the basis that the Respondent said no position did exist but that it was, subsequent to the conciliation advertised, is grounds to find that any agreement reached is void. I note however that there is only an agreement to void if one was reached and the Applicant disputes that this is the case. In any event, the Commission does not have the power to void an agreement although if it was reached under duress or in bad faith it may be voidable by a court of competent jurisdiction.

[25] The Applicant however says (presumably in the alternative) that he did not agree to a settlement as there was nothing for him to agree to. If this is the case the only way the Applicant could have provided evidence that he no longer intended to pursue his application is if he discontinued his application either orally or in writing. In this regard I would note that there is nothing on the file that indicates that this was what he has done. No correspondence was sent to the parties indicating the file was closed because an agreement had been reached to settle the matter or that the Applicant had otherwise indicated that he discontinued the matter although a note on the file suggests that there was a “non-monetary” settlement although no detail is provided. The only matter not in dispute is that there was no intention of the parties to enter into a formal agreement. There is otherwise no communication between the parties that an agreement was reached or what the details of such may be.

[26] No party involved in the conciliation has explained what the “terms of settlement” were that the Applicant is said to have agreed to – whether in writing or otherwise. Further, no submission is made and there is no material before the Commission to establish that, on the basis of having received what was due to him under the NSW Long Service Leave Act 1955, the Applicant agreed to discontinue his unfair dismissal application.

[27] I would observe that in reaching my conclusion I have not had regard to the two decisions referred to by the Applicant. Each of those matters was decided under a different unfair dismissal regime (Workplace Relations Act 1996) and prior the decision of the Federal Court in Australian Postal Corporation v Gorman 23 where it was determined that a binding settlement agreement is a complete answer to a claim for unfair dismissal and it is reasonable, in those circumstances, to dismiss an application because it had not reasonable prospect of success. Further, I have not had regard to the decision referred to by the TWU in Gorman v Australia Post24. This was the first in a very long line of decisions in relation to the application by Mr Gorman. This decision was overturned by a Full Bench, was subsequently heard by another member, appealed to the Full bench and, ultimately, was dealt with by the Federal Court.

CONCLUSION

[28] In reaching my decision in this matter I have had regard to the provisions of s.381 of the FW Act and, in particular, the need to ensure a fair go all round in dealing with unfair dismissal applications. It is this need for a fair go that tilts the balance of this matter in favour of the Applicant.

[29] It is not apparent to me in this case that the Applicant and Respondent reached an agreement to settle his claim for unfair dismissal although they may have reached an agreement for him to be paid the appropriate long service leave due to him. Further, there is nothing on the Commission files to indicate that an agreement to settle the unfair dismissal application was made or that the Applicant discontinued or intended to discontinue his application.

[30] The parties should note that, in reaching this conclusion, I have reached no view as to whether the Applicant was unfairly dismissed and make no observation in relation to the existence or otherwise of the Position. Further, I do not accept some of the more emotive descriptions by the Applicant of the conduct of the Respondent.

[31] This matter does raise issues as to the importance of some communication where it is intended that a matter be settled, whether that is between the parties or from the conciliator to the parties. Nothing of such a type occurred in this case. It is also a salutary lesson of the need for clear finalisation of matters from both an administrative perspective and for the sake of parties.

[32] The application will be referred for arbitration conference/hearing before a member. The parties should receive directions in due course.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Kalloor v SGS Australia Pty Ltd[2009] AIRC 682; Perrella v ITW Australia Pty Ltd T/A Hobart Food Equipment Service and Sales[2009] AIRC 107

 2   Gorman v Australia Post [2010] FWA 7423 at [42].

 3   [2017] FWCFB 4562.

 4 [2015] NSWCA 313 (Pavlovic) at [15]

 5   See, for example, Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 (Brambles)

 6   Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84]

 7   Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78]

 8   Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 26-27

 9   Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34]

 10   Brookfield at [30]-[31]

 11   Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346

 12   Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115

 13   Redowood at [84]

 14   Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 (Saliba) at [77]

 15   Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334

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

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

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

 19   Donaldson Coal at [91]

 20   Masters v Cameron

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

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

 23 [2011] FCA 975

 24   [2010] FWA 7423.