DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Mahesh Manna
v
Tee-Zed Products Pty Ltd T/A Dreambaby
(U2018/4072)

Application for an unfair dismissal remedy – jurisdictional hearing.

[1] Mr Mahesh Manna made an application for an unfair dismissal remedy on 18 April 2018 in accordance with section 394 of the Fair Work Act, 2009 (the Act).

[2] Mr Manna (the Applicant) was employed by Tee Zed Products Pty Ltd t/a Dreambaby (the Respondent) between 14 August 2017 and 29 March 2018. The Respondent was represented by Mr Ziegler.

[3] A Member Assisted Conciliation / Directions Conference was convened by the Fair Work Commission (the Commission), as presently constituted, on 19 June 2018. The parties agreed to allow the Commission to conduct a without prejudice conference in an attempt to settle the matter.

[4] At the conclusion of the Conference, the parties had reached an “in-principle” arrangement which was documented by my Associate in a Deed of Release.

[5] The Applicant sought modifications to his Separation Certificate as well as an opportunity to visit Centrelink before he signed the Deed. The Applicant was given 7 days to visit Centrelink and sign the Deed. Mr Ziegler believed that he could supply the updated Separation Certificate by the close of business on 19 June 2018.

[6] On 22 June 2018, the Applicant, by email, advised the Commission that he would not be signing the Deed and would like the matter set down for final determination.

“Dear Commissioner Riordan,

With reference to conference on Tuesday 19th June 2018 for matter number U2018/4072, Application for an unfair dismissal remedy, I wish to advise that I am not signing the settlement letter and requesting you for a listing for final determination.

Thank You.

Sincerely Yours,

Mahesh Manna.” 1

[7] A teleconference was convened on 27 June 2018 to ascertain the reasons why the Applicant was not prepared to sign the Deed.

[8] Relevantly, at no time during this Conference did the Applicant make any comment in relation to Centrelink but he did advise that he had received legal advice.

[9] The Respondent claimed that there was a settlement between the parties and that it was not right that the Applicant could just walk away.

[10] Directions were issued for a Hearing to occur on 30 July 2018, to determine whether a binding settlement had been reached between the parties at the Conference on 19 July 2018.

[11] At the Hearing, the Applicant sought to table his recollections of the conversations that occurred at the previous Conferences. I advised the Applicant that these Conferences were conducted on a without prejudice basis and that it is inappropriate for him to table his accurate or inaccurate recollections of what was said during these Conferences. This document was not accepted into evidence.

[12] The Applicant’s bundle of annexures were marked as Exhibit 2.

Submissions

[13] The Applicant advised that he did go and see Centrelink following the Conference, a visit that took some 4-5 hours. The Applicant advised that, due to the delay in lodging his Centrelink form that he would have to wait 17 weeks before his application would be finalised. The Applicant also claimed that he was advised by Centrelink that he would not receive any backpay.

[14] The Applicant had spoken about a number of insurance policies during the Conference. I was of the view that he was talking about income protection policies. However, Attachment C of Exhibit 2 identifies one of these policies as being some type of credit card repayment insurance. The Applicant claimed that the description of his termination did not invoke the provisions of this policy.

[15] The Applicant sent the Respondent the following email on 22 June 2018

“Hi Tony,

Could you please have the Date employment ceased corrected to 29^th March 2018 on my Employment Separation Certificate and have it emailed to me.

And could you please email my detailed pay slips (9 counts) covering from 14/8/17 to 23/4/18.

Thank you

Best regards

Mahesh Manna” 2

[16] Relevantly, Mr Ziegler responded on 22 June 2018 in the following terms:

“Hi Mahesh,

Sure, we will get it done hopefully all by Monday.

Once that is done, are we in agreement to settle?

Best regards

Tony Ziegler

Managing Director” 3

[17] Mr Ziegler sent the information requested by the Applicant, as well as the amended Separation Certificate, on 25 June 2018. I note that this document was provided some 6 days after the Conference. The Respondent was aware that the Applicant needed this document urgently to take it to Centrelink.

[18] Mr Ziegler submitted that he had complied with the request of the Applicant to amend his Separation Certificate in relation to the date of his termination and the reason for his termination. As a result, Mr Ziegler stated that they have a binding agreement.

[19] I have taken into account all of the submissions that have been provided by the parties. This matter becomes more complex on the basis that the without prejudice discussions between all of the parties must remain confidential.

[20] In Masters v Cameron 4 the High Court held that there may be three classes of formal contract following a successful negotiation:

“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.” 5

[21] There is no dispute that a Deed of Release was prepared by the Commission in the terms as agreed between the parties. However, the Deed was not signed at the Conference on the basis that the Applicant wanted to take his amended Separation Certificate to Centrelink to seek advice in relation to any unemployment benefits that may be payable as a result of his termination. I have taken this into account.

[22] I have taken into account Mr Ziegler’s email of 25 June, in particular where he said:

“Once that’s done, are we in agreement to settle? This confirms the scenario that final settlement had not been reached at the Conference”.

Conclusion

[23] Whilst I am of the view that the Applicant faces a difficult task in relation to his substantive application, I am satisfied that a final agreement had not been reached by the parties at the Conference on 19 June 2018.

[24] The parties did not intend to be “immediately bound” (as stated in Masters v Cameron) to the terms of settlement on 19 June 2018. Mr Ziegler was requested to amend and provide to the Applicant some documentation and the Applicant wanted to seek advice from Centrelink and his insurance company.

[25] For the above mentioned reasons, I find that a final and binding settlement was not reached between the parties on 19 June 2018.

[26] In order to guarantee procedural fairness for both parties, it is appropriate that I recuse myself from determining the substantive application. A different member of the Commission will issue Directions to the parties for the hearing of the unfair dismissal application in the near future.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit 2 Annexure E

 2   Exhibit 2 Annexure F

 3   Exhibit 2 Annexure G

 4   (1954) 91 CLR 353

 5   Ibid at [360] – [361]