| [2022] FWC 3027 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa Jackel
v
Erindale Jersey Stud Pty Ltd
(U2022/7045)
COMMISSIONER BISSETT |
MELBOURNE, 23 NOVEMBER 2022 |
Application for an unfair dismissal remedy
[1] Ms Lisa Jackel made an application to the Fair Work Commission on 12 July 2022 in which she sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Jackel’s application indicated that she was represented by Employee Dismissals. Ms Jackel was employed by Erindale Jersey Stud Pty Ltd (Erindale). Erindale was represented by Toop Workplace Law (TWL) and filed its response to the application on 25 July 2022.
[2] Ms Jackel’s application was listed for conciliation before a staff conciliator on 16 August 2022. During that conciliation terms to settle the matter were apparently agreed. Those terms were that Erindale would:
(a) Pay Ms Jackel 7 weeks’ wages ($8,078.00) less taxation
(b) Treat the dismissal as a resignation
(c) Provide Ms Jackel with a statement of service.
[3] Following the conciliation conference, the staff conciliator sent a letter to the parties that said, in part:
Thank you for your participation in today’s conciliation in the above case. I confirm that you reached a settlement agreement and I confirm that the terms of settlement are to be sent out by Hannah Linossier and will include but not be limited to;
Payment
• In addition to any money the Respondent has previously paid to the Applicant, the Respondent will pay to the Applicant $8078.00. The Respondent will deduct tax from this amount in accordance with applicable law.
• The Respondent will pay this amount to the Applicant within 14 days of the Applicant and the Respondent signing this agreement.
• The Respondent will pay this amount by electronic funds transfer to the Applicant’s nominated account, to be provided by the Applicant’s Representative together with a signed authority from the Applicant and the signed Agreement.
Resignation
• The termination of the Applicant’s employment will be treated as a resignation.
Statement of service [Optional clause]
• Within 14 days of the Applicant and the Respondent signing this agreement, the Respondent will give the Applicant a statement of service stating:
• the Applicant’s position with the Respondent, and
• the Applicant’s period of service with the Respondent, and
• the Applicant’s duties and responsibilities for the Respondent, and
• that the Applicant resigned from the Respondent.
As this is an agreement reached between the parties, you must send your signed terms to the other party. Do not send a copy to the Commission as we do not keep any record of your agreement. You should however keep a signed copy of the agreement for your records. Any resignation or statement of service (if applicable) should be sent directly to the relevant party, not to the Commission.
The Applicant will need to file a Notice of discontinuance (Form F50) with the Commission, with a copy sent to the Respondent. The Commission will refund the application fee, if applicable, within four to six weeks of receipt of the Form F50. 1
[4] On 29 August 2022 Ms Jackel wrote to the Commission. In that email she said:
Hi [name redacted],
In relation to my fair work commission case U2022/7045.
I would like to request a weeks extension on signing the settlement agreement terms that resulted from my commission hearing based on the fact that my representative did not consult with me prior to my hearing. There was no discussion around the facts of my unfair termination and also there are underpayments that were not discussed or brought up during the hearing. My attempts to raise them during the hearing resulted in my representative threatening me by saying I’d be breaching my terms and I felt pressured into agreeing with the outcome that the representative sought for without my prior permission to do so.
I am not at all happy with the outcome and so many facts around my application were left unaddressed. The representative at no point brought up that I was unfairly terminated nor did she gain my permission at any time prior to requesting compensation from the respondent.
I ask for an extension on the settlement agreement so that I can address all the issues that were not brought up during the conciliation hearing.
Regards,
Lisa
[5] This email was forwarded to the staff conciliator who responded to Ms Jackel with information on how to make a complaint about a lawyer or paid agent. Ms Jackel replied to the staff conciliator on 30 August 2022 and said:
Hi [name redacted],
Thank you for the response and I appreciate the link and info regarding making a complaint
This was never about expectations I may or may not have had but purely about the facts and the inability of my representative to state the facts of my case.
If this was about my expectations, then that would have required me to compose a whole other email on a completely different level. . (sic)
With respect I’m not sure if you’ve mis-understood my initial email but I was asking for an extension on the signing of the settlement agreement which has not been answered. I would have thought I would have received an answer as to weather (sic) or not it was a possible request? Given the lack of any formal reply to the question I can only assume that the request has been declined.
Regards,
Lisa
[6] The staff conciliator replied to Ms Jackel on 31 August 2022 (emphasis in original):
Good Morning Lisa,
Apologies for the misunderstanding.
I was sent your email by the Unfair Dismissals Team (UDT) and assumed that they had covered off on the signing and exchange of the Terms Of Settlement.
The exchange of the signed Terms of Settlement is between the Parties.
Under the agreement reached in conciliation the parties have 14 days after the Terms of Settlement are signed and exchanged, to comply with those terms.
You will not be paid the amount agreed until the Agreement is signed and exchanged.
No time frame for the Agreement to be signed and exchanged was set in the conciliation.
As I said in my letter;
“This concludes my role in the process. If any queries arise about implementing the terms of settlement, please contact the other party directly.”
Regards
[7] No further correspondence was received from Ms Jackel until 20 September 2022 when the Commission received an email from Ms Jackel in which she requested that her case be reopened (the request). That email said:
Dear case manager,
I write to you after discussing my case U2022/7045 | Jackel v Erindale Jersey Stud Pty Ltd with one of the fair work consultants.
I had engaged Employee Dismissals to represent me at the teleconference for my unfair dismissal case. The representative did not follow my instructions and I felt pushed into an ‘in principle’ agreement under duress, that I did not agree with at the time, or thereafter. I have not signed the agreement.
Employee Dismissals were very poor with their communication with me prior to the meeting and their representation at no stage was the mode of dismissal addressed by them.
In brief, the dismissal was initiated when I was asked to resign after being stood down for ‘gross misconduct/serious misconduct’ for not feeding a group of ??? calves that were all over 30 days in age. I admitted an error on my part for misunderstanding an instruction. After not resigning because I liked my job which I had done for over 4 years I was terminated. It was the only time I had ever been in trouble in my workplace. I believe I was the longest serving employee at Erindale Jerseys since its inception
I request that you reopen the case.
If you require any more details, please contact me via email or by phone
Thanks for your time
Regards
Lisa Jacke (sic) 2
[8] Ms Jackel’s request was referred to me and, whilst the file was managed by another Member for a short period, has ultimately returned to me for determination.
[9] Prior to the hearing of the request I granted permission to Erindale to be represented by a lawyer in proceedings. Ms Jackel had a support person with her. She requested, and I agreed, that her support person could speak on her behalf.
[10] A court book (CB) was created by my chambers. This contained the request in addition to material filed by Ms Jackel and Erindale in response to the directions of the Commission. This was provided to the parties for reference during proceedings. Ms Jackel indicated at the commencement of proceedings that she had also provided a medical report from her doctor dated 4 November 2022 (the medical report) that had been left out of the CB and she wished to have it included. No objection was raised to this. The medical report is included in the CB. 3
[11] Ms Jackel gave evidence on her own behalf. She said that she felt “threatened and coerced” to agree to the terms of settlement against her will and “felt [she] had no option but to agree” to the proposed settlement. 4
[12] Ms Jackel relied on the medical report to support her evidence that she was coerced and threatened into accepting the agreement.
[13] Ms Jackel agreed that, at the conclusion of the conciliation, the staff conciliator brought all parties into a joint telephone session, and that the conciliator then read out the terms to the parties. Ms Jackel agreed that, albeit under duress, she communicated to the Respondent and to the conciliator in that session that she agreed to the terms as they had been discussed.
[14] Ms Jackel agreed that in an email she sent to Employee Dismissals on 24 August 2022 she told her former representative that she would not be signing the settlement agreement as she was unhappy with the manner in which she had been represented. 5
[15] Ms Jackel agreed that in an email she sent to the Commission on 29 August 2022 she requested an extension of one week to sign the settlement agreement because her “representative did not consult with [her]” and she was “not at all happy with the outcome”. 6
[16] Ms Jackel agreed that in an email she sent to Employee Dismissals on 30 August 2022 she set out a number of points as to why she was unhappy with the representative, including that she was not seeking compensation from Erindale and that she had instructed Employee Dismissals to only accept an offer that included re-instatement. 7 While agreeing that she also said in that email if Erindale wanted her to sign a settlement agreement they would have to pay $50,000 to her that day, she denied that she intended to settle her unfair dismissal application for the payment of any amount.8
[17] Ms Jackel agreed however that she was willing to come to “some sort of arrangement” in relation to her application. 9
[18] Ms Jackel agreed that her email to the Commission on 20 September 2022 may have been the first time that she formally claimed duress in relation to the conciliation. She relied on the medical report to explain that her delay in raising the issue was due to her poor mental health and the side effects from her medication. 10 The medical report states that Ms Jackel informed her doctor that she was “coerced and threatened into accepting unfavourable terms” during the conciliation and that Ms Jackel’s “mental state was suboptimal at the time…significantly affected her judgement, decision-making and ability to advocate for herself”.11
[19] The conciliator gave evidence that it was apparent from her private discussions with Ms Jackel and her representative from Employee Dismissals that Ms Jackel and her representative were not in agreement as to what should be put during the conciliation. The conciliator said in examination-in-chief that in private conference Ms Jackel’s representative said to Ms Jackel “You talk, I don’t know what you want”. 12 The conciliator agreed that she thought Ms Jackel was under duress.13
[20] The conciliator also gave evidence that the terms of the offer that resolved the conciliation on 16 August 2022 was an offer made by Ms Jackel subsequently accepted by Erindale.
[21] In cross-examination the staff conciliator said that, after the offer that she conveyed from Ms Jackel and her representative was accepted by Erindale, she brought the parties together and repeated those terms of settlement as agreed. She then conducted an “around the grounds” where she individually asked Ms Jackel, Ms Jackel’s representative from Employee Dismissals, Mr Stephen Arnold (a Director of Erindale), and Ms Linossier from TWL if each agreed to the terms of settlement. Each individually verbally indicated their agreement to the terms of settlement. 14
[22] Ms Linossier of TWL gave evidence for Erindale. She says that she was present at the staff conciliation of Ms Jackel’s claim and took notes during that conciliation (the notes). 15 Her evidence is that the notes are accurate except that the heading of “Joint session” on page 4 of the notes should read “Private session”.
[23] Ms Linossier’s evidence is that, as reflected in the notes, the Applicant made an offer to settle the claim on the following terms:
(a) Statement of service
(b) Resignation (meaning [Ms Jackel’s] dismissal would be recharacterised as a resignation)
(c) 7 weeks (meaning [Erindale] would pay [Ms Jackel] 7 weeks’ wages. 16
[24] Ms Linossier’s evidence, reflected in the notes, is that the staff conciliator advised her and Mr Arnold in a private session that Ms Jackel and her representative “don’t agree on remedy sought. Having a fight about what the compensation is they are after” and that the staff conciliator was “unsure what [Ms Jackel] and representative is doing, confusing and they’re not on the same page (sic).” 17
[25] Ms Linossier also gave evidence that, at the end of the conciliation and in joint session with all parties, the staff conciliator read out the terms of the agreement and asked each person present a question to the effect of “do you agree to the terms of settlement between the parties.” Ms Linossier said that each participant individually indicated they understood and agreed to the terms. 18
[26] Shortly after the conciliation Ms Linossier received correspondence from the staff conciliator which indicated that a settlement had been reached and set out a summary of the key terms. 19 That letter also confirmed that TWL would draft the terms of settlement and circulate them to the parties.
[27] On 16 August 2022, in accordance with the terms of the agreement reached and the correspondence from the staff conciliator, Ms Linossier drafted a settlement agreement and sent it to Employee Dismissals.
[28] Mr Arnold of Erindale was present and signed the agreement and a statement of service for Ms Jackel with these to be provided to Ms Jackel on receipt of her signed copy of the agreement. 20
[29] Employee Dismissals replied to TWL on 17 August 2022, confirmed the in-principle agreement, and provided details of how the payment should proceed. Attached to its correspondence to TWL, Employee Dismissals included an “irrevocable authority” signed by Ms Jackel on 4 August 2022 which said:
I hereby APPOINT and AUTHORISE Employee Claims Pty Ltd t/a Employee Dismissals ACN 638 548 115 to sign any settlement agreement or instrument on my behalf as my agent in the event of an in-principle agreement between us. 21
[30] Between 22 August 2022 and 14 September 2022 correspondence was exchanged between Ms Linossier and/or Ms Toop of TWL and Employee Dismissals in which TWL followed up on the signed agreement. On 14 September 2022 Employee Dismissals advised that they were still waiting for the signed copy of the agreement to be returned to them. 22
[31] Mr Arnold gave evidence that he attended the staff conciliation with Ms Linossier at the offices of TWL. Ms Linossier represented Erindale and Mr Arnold gave her instructions.
[32] During the conciliation Mr Arnold saw Ms Linossier type notes of what was being communicated and he says that he has read those notes 23 and they are an accurate reflection of was said.
[33] Mr Arnold’s evidence is that, in the conciliation “after some back and forth of offers and counter-offers” the staff conciliator advised him and Ms Linossier of an offer by the Applicant to settle the matter. That offer was that Erindale would:
• Provide a statement of service
• Treat Ms Jackel’s dismissal as a resignation;
• Pay Ms Jackel 7 weeks’ wages. 24
[34] Mr Arnold’s evidence is that he instructed Ms Linossier to accept the offer so that the proceedings could be resolved.
[35] Mr Arnold also gave evidence that the staff conciliator brought the parties back together and explained that the parties had reached agreement to settle the matter. The staff conciliator ran through the terms and then separately asked each of the four people present if those were the terms agreed. Each of the individuals said “I agree”. 25
[36] Mr Arnold remained at the offices of TWL after the conciliation concluded while the settlement agreement was being drafted. During this time he contacted Erindale’s payroll department and informed them that Erindale would be paying 7 weeks’ wages to Ms Jackel within the next two weeks and to have the payment ready so that it could be made once the agreement was executed. Mr Arnold said he reviewed the settlement agreement as drafted and it was an accurate reflection of the offer accepted by him. 26
[37] Ms Jackel submits that she did not freely enter into an agreement to settle her application for unfair dismissal. She submits that her representative from Employee Dismissals did not represent her or follow her instructions during the conciliation. Rather, she says she “felt pushed” into the agreement “under duress”. She says she did not agree with the terms of the agreement at the time or thereafter. Ms Jackel relies on the medical report to support that she did not freely enter into the agreement.
[38] Ms Jackel submits that she was not given the opportunity to discuss the facts of her case or have these considered during the conciliation. She said she is “wanting to re-open the case to discuss the facts around my unfair dismissal…None of them were addressed, that’s the issue here” 27 and that “all that needs to be dealt with before we can discuss compensation. [Compensation] was never the reason for my application”.28
[39] Erindale submits that Ms Jackel has not challenged the fact that, through her representative, she communicated a willingness to settle her case in exchange for Erindale paying to her 7 weeks’ wages, treating her dismissal as a resignation and providing her with a statement of service. Erindale says this was communicated to Mr Arnold who accepted the proposal to settle. Erindale submits that, viewed objectively, the clear intention of the parties was to reach a binding settlement agreement.
[40] Erindale also submits that the conduct of the parties following conciliation evidences a clear intention to enter a binding settlement agreement: the conciliator sent the parties a letter confirming agreement had been reached and the terms of that agreement; TWL provided a written settlement and release agreement reflecting those terms and Mr Jackel’s representative confirmed that agreement had been reached.
[41] Erindale further submits that, given these circumstances, it is clear that an agreement was reached and the parties are each to be held to their bargain. This extinguishes Ms Jackel’s unfair dismissal application.
[42] To the extent that Ms Jackel was dissatisfied with her representative and felt under duress, Erindale submits that Ms Jackel has provided no evidence of this beyond a claim that she felt “under pressure”. To the extent Ms Jackel relies on her medical report, Erindale submits that report is hearsay, the doctor has not been called to give evidence, the report is dated 4 November 2022 – well after the conciliation – and the report does no more than relay that Ms Jackel told the doctor she was coerced and threatened. In any event Erindale says that this is not relevant to the matter now before the Commission and that if Ms Jackel seeks action against her former representatives, that is a matter for the Courts and not the Commission.
[43] Section 587 of the FW Act provides that:
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.
(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.
CASE LAW
[44] In Australian Postal Corporation v Gorman 29 Besanko J said:
31. An accord and satisfaction extinguishes the existing 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 the subsequent litigation of the original claim; it is an answer to the claim.
…
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.
[45] That is, if a binding settlement agreement has been reached by the parties the original application may be dismissed (pursuant to s.587 of the FW Act) because it no longer has any reasonable prospect of success. This is because the existence of a binding settlement agreement finalises the application for unfair dismissal. Any dispute after an agreement is reached rests on the resolution of that dispute in the context of the agreement. This is not a matter before the Commission as the Commission does not have jurisdiction (the power) to settle such matters.
[46] Whether a binding agreement was reached is a matter of fact, to be determined by the Commission. 30
[47] The circumstances under which an agreement might be considered to have been reached was set out by the Full Bench of the Commission in Singh v Sydney Trains 31 (Singh) where the Full Bench considered the relevant case law and said (footnotes omitted):
[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:
“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).”
…
[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.
• 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.
• 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.
• Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 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.
• 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”. 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.” 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.
[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. A counteroffer accepted by the original offeror creates a binding agreement.
[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.
[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. However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating. 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”.
[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.44 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.
[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.
[48] Some important points can be drawn from this decision to be noted in relation to the matter before me.
[49] Firstly, whether an agreement was reached is to be determined objectively by the Commission. The particular view of any particular party as to what occurred is not determinative of the matter.
[50] Secondly, the conduct of the parties after the agreement was purportedly made is important in deciding if an agreement was, in fact, made.
[51] Thirdly, acceptance of a proposal to settle (as made by Ms Jackel) in the same terms but with the addition of machinery terms constitutes a corresponding offer and acceptance.
[52] In Chapman v Ignis Labs Pty Ltd T/A Ignis Labs 32 the Full Bench of the Commission heard an appeal by Mr Chapman from a decision of the Commission in which Mr Chapman’s application for remedy for unfair dismissal was dismissed on the grounds that he had reached a binding settlement agreement. On appeal Mr Chapman argued (amongst other matters) that he was not bound by the agreement to settle his unfair dismissal application because he entered into the agreement under duress. The Full Bench in that matter found:
[29] …Firstly, it is clear that the effect of duress, should it be established…would be to render the settlement agreement voidable, rather than void. 33 Accordingly, Mr Chapman’s contention that he is not bound by the settlement agreement on this basis, without more, cannot be sustained. Secondly, it is equally clear that a determination that the settlement agreement ought be set aside on the ground of duress is a matter for the courts, not this Commission. We find no error in the Deputy President’s approach to this matter.
[53] It is necessary for me to determine, on the facts before me, if a binding settlement agreement was reached between the parties.
Was an agreement made?
[54] I am satisfied, on the basis of the evidence before me, that the parties entered into a binding settlement agreement at conciliation and that the effect of this agreement was to bring to an end Ms Jackel’s claim for unfair dismissal.
[55] In reaching my conclusion I have relied upon the evidence of the staff conciliator, Ms Linossier, Mr Arnold and that of Ms Jackel herself, in particular the evidence that, at the end of the conciliation, the staff conciliator brought the parties together, detailed the terms of settlement, and asked each person if they agreed to those terms in settlement of the matter and that each person, including Ms Jackel, said that they did.
[56] Further, I have relied on the conduct of the parties following the conciliation as support for my conclusion. The staff conciliator wrote to Ms Jackel and Erindale on the day of the conciliation and set out the terms of the agreement reached. That day TWL drafted the terms of settlement and sent these to Employee Dismissals who replied that “agreement in principle” had been reached and provided details for the payment of the settlement amount. Further, Employee Dismissals sent to TWL a copy of the authority signed by Ms Jackel in relation to how the payment under the agreement should be made.
[57] On 29 August 2022 Ms Jackel wrote to the Commission and requested “a weeks extension on signing the agreement”. While Ms Jackel indicated some dissatisfaction with the outcome she did not, in this correspondence, suggest that an agreement had not been reached. Ms Jackel took no further action to alert the Commission that she did not consider an agreement had been reached until 20 September 2022 – five weeks after the conciliation had concluded and where she had indicated her agreement to the settlement terms.
[58] I do not consider that the description by Employee Dismissals’ that an agreement was reached “in-principle” adversely affects the conclusion I have reached. As the Full Bench observed in Singh the use of the phrase “in-principle” must be considered in the context of the matter in which it is being used. In this case I consider it to do not more than indicate that the written terms were yet to be signed and executed – it did not suggest some vagueness as to the existence of an agreement.
[59] I am satisfied, for these reasons, that the parties did reach an agreement on 16 August 2022.
The duress question
[60] In reaching my conclusion as to the existence of an agreement between the parties I have considered Ms Jackel’s claims that Employee Dismissals did not represent her effectively in the settlement discussion and that she only agreed “under duress” to the settlement.
[61] Ms Jackel’s medical report does not support a finding of fact that she was under duress at the time she made the agreement in conciliation for two reasons. Firstly, there is no indication that the doctor saw Ms Jackel at or near the date of the conciliation. The report is dated 4 November 2022, 2 months and 3 weeks after the conciliation. Secondly, and related to this, the medical report does no more than relay by the doctor what Ms Jackel told her on or around 4 November 2022. The report says that:
…Ms Jackel was represented [in the conciliation] by…Employee Dismissals at the time, and states that she was coerced and threatened into accepting unfavourable terms which put her on the losing end.
Ms Jackel’s mental state was suboptimal at the time due to the anxiety and stress caused by the situation, and this significantly affected her judgement, decision-making and ability to advocate for herself… 34
[62] This is not an assessment of the doctor as to Ms Jackel’s mental state at the time of the conciliation. Further, it does not go to any matters that would allow for a determination of whether Ms Jackel was under duress at the time she reached agreement such that she was incapable of making an informed decision. While it is apparent from the evidence that Ms Jackel and her representative were in disagreement about matters during the conciliation, this does not allow an inference to be drawn that Ms Jackel could not “advocate for herself”. 35
[63] While the conciliator gave evidence that Ms Jackel was under duress, and whilst I accept the evidence of the conciliator as true, I am not satisfied the conciliator could make a medical diagnosis of Ms Jackel’s state. Even if the conciliator was correct she did not give evidence as to the cause of that duress and certainly it was not of such concern that the conciliation needed to be halted.
[64] I have considered correspondence between Ms Jackel and the Commission. On 29 August 2022 Ms Jackel wrote to the Commission seeking “a weeks extension on signing the settlement agreement” because her representative “did not consult” with her prior to the conciliation and there was “no discussion of the facts” of her dismissal and issues in relation to underpayments were not raised. Ms Jackel said that her “attempts to raise [these matters] during the hearing resulted in [her] representative threatening [her].” In being provided with information by the conciliator on 30 August 2022 on how to report the behaviour of her representative Ms Jackel replied that her concern was the inability of her representative “to state the fact” of her case. She did not suggest that any issue of duress had affected her ability to agree or say that she had not agreed or wished (if possible) to withdraw her agreement. Rather, she sought more time to sign the agreement.
[65] If it is that Ms Jackel was under duress and this could be proven, as was said in the decision in Chapman, to which I am bound, this does not make the agreement she reached void. Should Ms Jackel wish to have the agreement made set aside because of duress she needs to make an application to the relevant Court (not the Commission).
[66] I would observe that, on the evidence of the staff conciliator, Ms Linossier and Mr Arnold, and which was not disputed by Ms Jackel, Ms Jackel agreed with the terms of settlement as read out by the conciliator in joint session.
[67] Ultimately, whether Ms Jackel was under duress at the time she agreed to the settlement of her unfair dismissal application is not a matter I can determine. Even if I did find that she was under duress the Commission lacks the power to set aside an agreement actually made. Even if it was a matter for me to determine, the evidence before me would not allow me to conclude that Ms Jackel acted under duress.
[68] For the reasons set out above I am satisfied that Ms Jackel and Erindale entered into a binding settlement agreement.
[69] The agreement reached was of the first category identified in Masters v Cameron 36 in that the parties had reached agreement and intended to be immediately bound by those terms but with those terms to be put in writing in a fuller and more precise form. An agreement having been reached, this is a complete answer to Ms Jackel’s claim for unfair dismissal.37 Her application for unfair dismissal therefore has no reasonable prospect of success. I have therefore determined to dismiss her application for unfair dismissal.
[70] I have reached my conclusion based on the words used at the conclusion of the conciliation, the terms of the correspondence to the parties by the conciliator and that TWL took action to immediately generate the written the terms and sent those the Employee Dismissals, Ms Jackel’s representation. The evidence as to Ms Jackel’s conduct post conciliation – in particular her correspondence with Employee Dismissals and with the Commission and the medical report do not, for the reasons given above, dissuade me from my conclusion.
[71] If it is that Ms Jackel believes she was coerced into reaching the agreement she can apply to have the agreement set aside by the courts. I would recommend that she seek professional advice before doing so as it is a high bar the hurdle to prove duress or coercion.
[72] For the reasons outlined above, I order that the application for unfair dismissal be dismissed pursuant to s.587(1)(c) of the FW Act.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR747937>
Appearances
B. Adams with L. Jackel for the Applicant
A. Denton of counsel for the Respondent
Hearing details
Melbourne via video
9 November 2022
1 CB page 59-60
2 CB page 3
3 CB page 85
4 Transcript PN100
5 Submissions of Lisa Jackel CB pages 9-10
6 Submissions of Lisa Jackel CB page 11
7 Submissions of Lisa Jackel CB pages 11-12
8 Transcript PN133 and PN210
9 Transcript PN215
10 Transcript PN218
11 CB page 85
12 Transcript PN294
13 Transcript PN292
14 Transcript PN316-PN321
15 Witness statement of Hannah Linossier annexure HL-1, CB page 26
16 Witness statement of Hannah Linossier paragraph 5, CB page 21
17 Transcript PN366
18 Witness statement of Hannah Linossier paragraph 6, CB page 22
19 Witness statement of Hannah Linossier paragraph 8, CB page 21 and annexure HL-2, CB page 33
20 Witness statement of Hannah Linossier paragraphs 12-13, CB pages 22-23
21 Witness statement of Hannah Linossier paragraphs 14-15, CB page 24 and annexure HL-6, CB page 46
22 Witness statement of Hannah Linossier paragraph 20, CB page 25 and annexure HL-10, CB page 67
23 Witness statement of Stephen Arnold paragraph 4, CB page 70 and annexure SA-1, CB page 73
24 Witness statement of Stephen Arnold paragraph 5, CB page 70-71
25 Witness Statement of Stephen Arnold paragraph 7-8, CB page 71
26 Witness Statement of Stephen Arnold paragraph 9-11, CB page 71-72
27 Transcript PN210
28 Transcript PN203
29 [2011] FCA 975
30 Ibid [37]
33 Gibbons v Wright [1954] HCA 17, 91 CLR 423; see also R Bigwood ‘Coercion in Contract: The Theoretical Constructs of Duress’ (1996) 46 The University of Toronto Law Journal 201 at 208
34 CB page 85
35 Ibid
36 (1954) 91 CLR 353.
37 See Australia Post v Gorman [2011] FCA 975