| [2018] FWC 962 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lloyd Baker
v
Business Risks International Pty Limited T/A BRIsecurity
(U2017/6000)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 13 FEBRUARY 2018 |
Application for an unfair dismissal remedy – matter settled – application dismissed pursuant to s.587 of the Act.
[1] On 2 June 2017, Mr Lloyd Baker made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act). In the Form F2 – Unfair dismissal application filed with the Fair Work Commission (Commission) by Mr Baker, Business Risk International T/A BRIsecurity (BRI) was named as the Respondent.
[2] The application was referred to conciliation on 22 June 2017. At conciliation, Mr Baker was represented by his then representative Mr Gary Pinchen of A Whole New Approach Pty Ltd (AWNA), with BRI being represented by Mr Thomas Brett, formerly of Fisher Cartwright Berriman Pty Ltd T/A FCB Workplace Law (FCB).
[3] The Commission file records the matter having settled at the conciliation conference on 22 June 2017. Correspondence was sent by the conciliator to the parties on the same day, stating:
“Thank you for your participation in today’s conciliation in the above matter. I confirm that you reached a settlement agreement and that the terms of settlement are to be sent out by Tom Brett, representative for the Respondent.
As this is an agreement reached between the parties, you must send your signed terms to the other party.”
[4] It is asserted by BRI that the parties agreed to settle the matter on the following bases:
• BRI to pay Mr Baker the gross amount of $3,460.00;
• Mr Baker’s termination to be treated as resignation;
• BRI to provide Mr Baker with a statement of service;
• the application to be discontinued; and
• Mr Baker to enter into a Deed of Release and Confidentiality (Deed) prepared by FCB with terms including mutual release, mutual confidentiality and mutual non disparagement.
[5] Subsequently, on Friday 23 June 2017, Mr Brett emailed Mr Pinchen and stated:
“We refer to the settlement agreement reached between the parties during yesterday’s conciliation conference. As you aware (sic) the settlement is subject to the parties entering into the attached Deed of Release and Confidentiality.
We look forward to receiving an executed copy of the Deed and written notice of the nominated bank details for Mr Baker.
Please feel free to contact me if you would like to discuss.” (emphasis in original)
[6] The Deed drafted by FCB stated that it was made between Mr Baker and Business Risks International (WA) Pty Ltd (ABN 34 132 818 421), and provided a list of recitals as follows:
“RECITALS
A. Mr Baker commenced work as a security guard at the Art Gallery of Western Australia in or around September.
B. As at 1 May 2017, Mr Baker was employed by East-West as a security guard, working at the Art Gallery of Western Australia (the Employment).
C. On 1 May 2017, East-West terminated the Employment (the Termination).
D. On 2 May 2017, Mr Baker tendered a letter of resignation from the Employment.
E. On or around 2 June 2017, Mr Baker filed an application for an Unfair Dismissal remedy in the Fair Work Commission nominating BRI as the employer, in matter U2017/6000 (the Proceedings). BRI does not admit it was Mr Baker’s employer.
F. Without any admissions, BRI and Mr Baker have agreed to settle all matters relating to the Employment, the Resignation, the Proceedings and the Termination on the terms specified in this Deed.” (emphasis in original)
[7] Further, the Deed provided a list of definitions in clause 1 which included the following:
“1. DEFINITIONS
1.1 The following definitions apply unless the context requires otherwise:
…
BRI means Business Risks International (WA) Pty Ltd (ABN 34 132 818 421) of 51-65 Clarke Street, Southbank in the State of Victoria;
BRI Associate means any Group Company, and the directors, officers, employees, servants and/or agents of BRI and any Group Company;
East-West means East-West Guarding Pty Ltd (ABN: 2060 8644 855) of 148a Surrey Road, Riverdale, Western Australia;
Group Company means a related body corporate, as that term is defined by the Corporations Act 2001 as amended from time to time”
[8] On Wednesday 5 July 2017, Mr Brett sent an email to Mr Pinchen attaching Mr Baker’s final payslip and referred to a telephone conversation of 30 June 2017 “regarding East West Guarding Pty Ltd”. In this correspondence, Mr Brett advised Mr Pinchen in relation to the payslip:
“You will note a reference to Macxsec WA Pty Ltd (Macxsec). Macxsec is the payroll company for East-West Guarding Pty Ltd. Despite the reference to Macxsec, Mr Baker was employed by East-West Guarding Pty Ltd. On this basis, we are instructed to retain the references to the East-West in the Deed (which your client was put on notice of and agreed to during the conciliation conference).
We accordingly look forward to receiving the executed copy of the Deed before the Payment can be made.” (emphasis in original)
[9] On Monday 10 July 2017, the Commission received a Form F54 – Notice of representative ceasing to act filed by AWNA. On Tuesday 11 July 2017, Mr Brett sent a follow-up email to Mr Pinchen enquiring as to when BRI could expect to receive an executed copy of the Deed. A reply email was sent by Mr Pinchen to Mr Brett at 12:35pm that day stating:
“Tom,
Not signing it. [Mr Baker] informs me he’s talking to the ABC and the government authorities.
I’ve put the file away.”
[10] On Wednesday 12 July 2017, Mr Brett telephoned Mr Pinchen who confirmed that he was no longer acting for Mr Baker. Later that day, Mr Brett telephoned Mr Baker who advised he would not sign the Deed as he disagreed with references to East-West Guarding Pty Ltd (East-West). Following Mr Brett enquiring whether he would sign if references to East-West were removed, Mr Baker indicated he would still not sign as he considered it to be fraud and further disagreed with the payment amount offered by BRI.
[11] Consequently, Mr Brett emailed the Commission on Thursday 13 July 2017 and advised:
“The terms of the settlement agreement were set out in writing and issued to the Applicant on 23 June 2017. He has declined to do so. Yesterday, the Applicant advised he was not prepared to enter into the settlement agreement reached by the parties on 22 June 2017.
As a consequence, we respectfully request the Fair Work Commission re-list this matter for a further conference in relation to the settlement agreement reached with the objective of achieving a mutually acceptable outcome for both parties.
I confirm the Applicant has been copied into this email correspondence and understand that the Applicant’s representative ceased to act for Mr Baker. This was confirmed in my discussions with Mr Baker on 12 July 2017.”
[12] In a telephone conversation on 14 July 2017, Mr Brett was advised that the Commission file had been closed following conciliation. Mr Brett advised the Commission staff member that BRI no longer wanted to request the matter be referred to arbitration and said he intended to discuss the matter with Mr Baker directly.
[13] On Thursday 27 July 2017, Mr Baker emailed BRI and the Commission, stating he was “[J]ust following up, to see if another date has been set down for a further conference”.
[14] On 28 July 2017, Mr Baker was advised that because the Commission file had been closed, a written request for his matter to be re-opened would be required. Mr Baker said he would send a request to the Commission later that day.
[15] As a request had not been received from Mr Baker, on 16 August 2017 the Commission sent correspondence, to which BRI was copied, and advised the following:
“It is not clear from your correspondence whether you have reached a binding agreement with the respondent to settle the application or whether, instead, only an in-principle agreement with the respondent was reached.
If you reached a binding agreement with the respondent but consider that the respondent has not complied with it, then the Commission does not have jurisdiction to enforce the agreement. The agreement would need to be enforced by the appropriate court.
If you reached a binding agreement but have changed your mind and now want to proceed with the application before the Commission, you should be aware that the respondent can enforce the agreement in a court and if you do not proceed with the application before the Commission, you may face an application to pay the respondent’s legal and other costs.
If you say you only reached an in-principle agreement with the respondent, then the application may be determined through a conference or hearing by the Commission.
No further action will be taken in relation to this matter until this confirmation as to the nature of the outcome from the conciliation conference on 22 June 2017 has been received by the Commission.
The respondent will be given the opportunity to respond to any material you put forward in response to this letter.” (emphasis in original)
[16] Mr Baker telephoned the Commission on 16 August 2017 and asked for clarification as to the correspondence sent earlier that day. He was advised the Commission could not give legal advice and informed that if he wished to request that his matter proceed to arbitration, he should file submissions in this regard. Mr Baker responded by saying that the parties only reached an in-principle agreement, and that the Deed sent to him by BRI was fraudulent as it named an incorrect employer entity. As Mr Baker advised that he was not comfortable signing the Deed, he was referred to the Employment Law Centre of WA for further assistance.
[17] In addition to this dispute as to whether a binding settlement agreement between the parties had been reached, Mr Baker is confronted with two other hurdles in pursuing his application for unfair dismissal remedy. The first is that his application was filed late, meaning that he would be required to persuade the Commission to grant him an extension of time for the making of it. Secondly, BRI flagged it would object to the application for unfair dismissal remedy made against it, on the basis that it was not Mr Baker’s employer.
[18] Mr Baker provided submissions on 18 August 2017, contending that he is unable to accept or sign the Deed provided by BRI because it contains “many false statements of the facts and occurrences of actual events”. Primarily, Mr Baker asserted that although recital E of the Deed states BRI does not admit it was his employer, the employment contract he signed on 17 September 2013 also contained a signature of BRI’s then General Manager, Mr Alan Wood.
[19] Additionally, Mr Baker submitted the “Acceptance of Offer of Employment” page of his employment contract, with Mr Wood’s signature stated as being “[F]or and on behalf of Consec Personnel PTY LTD”. Mr Baker also submitted his Letter of Offer provided on a BRI letterhead, which was dated 16 September 2017 and provided that his appointment was “made pursuant to the BRI/Consec Terms and Conditions of Employment”.
[20] Further, Mr Baker contended that recitals A-E of the Deed (referred to at [6] above) “are either misrepresenting the facts or are false”, and submitted the following:
“Recitals A of The Deed state's (sic) that I “commenced work as a security guard at the Art Gallery of Western Australia in or around September”. But the Recital does not specify the year. The year was 2013. I believe this statement is a deliberate attempt to hide the facts.
Recitals B and C allege that I was an employee for East-West for only one day (1 May 2017). I had no knowledge of this. If I was employed by this company for one day, I did not sign any contract. This statement is fanciful in the extreme.
Recital D mentions I tendered my resignation. I did this under duress as I was on 4 weeks leave overseas as of the next day. The people representing BRI, WA, (and associates) who meet with me to terminate my employment, I allege made me submit a resignation and thus I consider this to constitute an 'adverse action' against me.
Thus I can not agree to sign the Deed as presented to me by the lawyers of BRI, (WA) and contest the accuracy, factualness and representation of events as outlined in the Recitals of The Deed.”
[21] On 23 August 2017, the representative for BRI sent an email to the Commission in which it submitted that the parties had reached a binding agreement at conciliation, with settlement terms being “discussed and agreed in finality… to be expressed in writing by our firm on behalf of the Respondent and issued to the Applicant”.
[22] It was further submitted by BRI that “[I]n addition or in the alternative those terms were agreed in finality, with performance of the terms subject to the Applicant executing a Deed”. In this regard, BRI referred to Masters v Cameron 1 as authority for the binding nature of the agreement reached by the parties and submitted the matter had been “properly concluded” by the Commission following conciliation.
[23] Indicating it did not consent to Mr Baker’s request to “re-open and re-agitate his claims in this matter”, BRI contended Mr Baker had sought to resile from the agreement and in the absence of a resolution being agreed, it may “ultimately be a matter for a court to determine”. Despite submitting that it “intends to hold [Mr Baker] to those agreed terms”, BRI indicated it was willing to attend a telephone conference facilitated by the Commission, in order for the parties to “attend to and resolve any outstanding concerns regarding the words used in the Deed”.
[24] Following receipt of the material, I advised the parties I would convene a telephone Mention hearing, which proceeded on 1 September 2017.
[25] At the Mention, it was confirmed by Mr Baker that he would not sign the Deed. I conducted a conciliation in an attempt to resolve the dispute between the parties but this was not successful. Therefore, at the conclusion of Mention I directed BRI to advise whether it intended to press its application to dismiss Mr Baker’s matter on the basis that the parties reached a binding settlement agreement.
[26] On 5 September 2017, BRI emailed my chambers and confirmed that it would be pressing its application to dismiss pursuant to s.399A(1)(c) of the Act.
[27] BRI was directed to file its material by 21 November 2017, with Mr Baker to file in reply by 5 December 2017. Parties were also directed to inform my chambers whether they required an oral hearing in relation to the material filed by 7 December 2017, and were advised that if neither party sought an oral hearing the matter would be determined on the papers.
[28] On 13 November 2017, Mr Baker emailed my chambers and submitted the following:
“The papers sent out to me by the BRI lawyer, I found to be incorrect, as they say I was employed by East West. It seems I was hired and fired on the same day by East West, who I have never heard of, until I received the papers from the BRI lawyer. I was employed by BRI and wore a BRI uniform. I am still beside myself how one can be employed by a company, (BRI) who I signed a contract with, and fired by another company (East West) who I had no knowledge of or contract with. That being the case I am unable to sign these papers, and therefore request an oral hearing.”
[29] On 21 November 2017, BRI provided an outline of submissions and affidavit of Mr Brett in support of its application to dismiss.
Affidavit of Mr Brett
[30] Mr Brett’s affidavit, affirmed on 21 November 2017, 2 includes notes of his discussions with Mr Pinchen regarding proposed terms of settlement at the conciliation on 22 June 2017. Mr Brett’s file note of these discussions made mention of East-West being included in the Deed along with “related entities”. At the hearing on 1 February 2018, Mr Brett gave further evidence in relation to these notes which is outlined at paragraph [45] below.
[31] In relation to a subsequent telephone conversation he had with Mr Pinchen regarding the Deed sent on 23 June 2017, the following was submitted by Mr Brett:
"On 12 July 2017, I spoke with Mr Pinchen by telephone and we had a conversation in words to the following effect:
[Mr Brett]: Hi Gary, it’s Tom Brett from FCB. I am calling regarding the email you sent me yesterday which stated that Mr Baker was not going to sign the Deed.
Mr Pinchen: Hi Tom, you are correct. Lloyd won’t sign the Deed as he does not know who East West Guarding is. He is not going to adhere to the settlement agreement reached during the conciliation conference on 22 June.
[Mr Brett]: I don’t understand - we have reached a settlement. Are you still acting for him?
Mr Pinchen: No, I am not. However, I understand that Lloyd is taking his concerns about BRI to the ABC and the regulatory bodies.
[Mr Brett]: What are those concerns?
Mr Pinchen: He thinks the whole model is untoward”
[32] Following a request by Mr Brett that Mr Pinchen confirm in writing that he had ceased to act, a further telephone call was made to Mr Baker on 12 July 2017. With regards to this conversation, Mr Brett submitted that words to the following effect were spoken:
“[Mr Brett]: I am calling to understand why you are not signing the Deed.
Mr Baker: I am not signing the Deed as it is fraudulent. East-West Guarding is not my employer. I have an appointment with the Minister for Arts to expose BRI for what they are doing.
[Mr Brett]: Well I should put you on notice of the fact that there was a settlement agreement in this matter that we say is binding. A breach of that agreement will have consequences for you. Such breaches include disclosing information to the media or the Minister. You are also jeopardising the agreed payment you will receive and the characterisation of your termination.
Mr Baker: This is not what I am doing - I am exposing the crooks.
[Mr Brett]: It is not likely you will convince anyone of this. You should put this behind you.
Mr Baker: I am not going to sign.
[Mr Brett]: You are still bound by the settlement agreement and I encourage you to reconsider your position to protect your rights.”
[33] Mr Brett further submitted that at approximately 6.50pm on 12 July 2017, he called Mr Baker and words to the following effect were spoken:
“[Mr Brett] Hi Mr Baker, it is Tom Brett calling again from FCB. I don’t have instructions yet, but I want to understand whether you would sign the Deed if we changed the Deed and removed the East-West Guarding references?
Mr Baker: Nope. It is still fraud.
[Mr Brett]: BRI won’t agree that it was fraud.
Mr Baker: I will get back to you. I envisaged working for a further two years. I was talking to John prior to going to Gary and the way I look at it is two weeks isn’t going to do it. They will lose a 1 million dollar contract. What I am saying to you is I expected to work for another two years and that is $100,000. I don’t like bullies.”
Further Submissions of BRI
[34] In its outline of submissions filed on 21 November 2017, BRI sought to rely on Masters v Cameron 3 and submitted that the nature of the agreement reached at conciliation falls within either the first or second category of agreements which are binding despite the absence of a signed deed. Primarily, BRI submitted the first limb of the test in Masters v Cameron was satisfied and the conciliation concluded on the basis that the agreement would be reduced to writing, with its terms to be restated in a form issued by Mr Brett on behalf of BRI. In this regard, it was submitted that the fact the terms of the Deed were fuller or more precise is immaterial, as they “were no different in effect so as to fall within the first category of Masters v Cameron”.
[35] BRI further asserted there was a concluded settlement and relied on Howey v Mars Australia Pty Limited t/a Mars Petcare Australia 4 in which Deputy President Sams had found a concluded agreement had been reached at conciliation in the first class of agreements described by the High Court in Masters v Cameron. BRI also relied on Tomas v Symbion Health5 and Csontsos v QT Hotels & Resorts Pty Ltd6, which it submitted supports the contention that a failure by an applicant to sign terms of settlement following conciliation does not excuse them from being bound by the agreement reached.
[36] As such, BRI contended Mr Baker is bound by the agreement reached at conciliation on 22 June 2017 and his application should be dismissed pursuant to s.587 of the Act.
[37] BRI subsequently emailed my chambers on 6 December 2017 and informed that it would not be seeking an oral hearing in relation to the material filed in the matter. However, as Mr Baker had previously made a request in his email dated 13 November 2017, I caused correspondence to be sent to parties on 12 December 2017 which contained proposed hearing dates and requested that parties confirm their availability.
[38] A Mention hearing via telephone was held on 18 December 2017. The following day, I caused directions to be sent to the parties directing Mr Baker to file any material upon which he relied in reply to BRI’s submissions filed on 21 November 2017, by 4.00pm on Monday 15 January 2018. BRI was directed to file any material in reply to Mr Baker’s submissions by 4.00pm on Wednesday 24 January 2018, with the matter being listed for hearing in relation to whether a binding settlement had been entered, via video link on Thursday 1 February 2018.
[39] In an email sent to my chambers on 28 December 2017, Mr Baker asserted that according to the submissions filed by BRI on 21 November 2017, a final settlement agreement was “contingent on both parties accepting the Deed”. Mr Baker referred to his previous submissions and submitted he would not accept the Deed as there were three components of the recitals that he considered to be “deliberately vague or misleading”. It was further submitted by Mr Baker that:
“…I still contend that BRI Security is a company responsible for my employment (from 23 September 2013) and was still my employer when, I believe I was unfairly dismissed by people who I have now discovered represent another company, that being Macxsec WA Pty Ltd, associated with BRI Security. I was certainly not employed by Macxsec WA, so now unsure what relationship this company has with BRI Security.
In fact the whole process of my termination, I believe was flawed, from me not receiving any official, signed letter, or indeed any information at all from my employers (that being BRI Security, reasons as discussed above) re my removal, to being told by those who I now know represent Macxsec WA, (via an association with BRI Security) that if I did not resign and hand in my uniform, I would not be paid what was owed to me, that being my annual leave and other entitlements. I was bullied into resigning by people who I have now discovered are representatives of BRI Security, but did not inform me who they represented at the time. It was quite a stressful time for me as I was flying out to New Zealand the following day. Now I know that I wasn't in fact dismissed by my employer, it makes the whole process a complete farce, and definitely worth me pursuing unfair dismissal.
The entire process of my unfair dismissal has been dominated by bullying tactics, false and misleading information, and a complete lack of documentation by my employer - BRI Security. If BRI Security is suggesting, they believe I was employed by East-West Guarding Pty Ltd, then they have not provided any supporting information as evidence.
In regards to the information in Mr Bretts affidavit (sic). I now disagree with the amount I believe I should be owed by the respondent. If it wasn't for the unfair and un-transparent way I was terminated I envisaged working for two more years before I retire. At $50,000 a year, that's a $100,000 of lost income.”
[40] On 24 January 2018, BRI filed an affidavit of Ms Justine Krajewski, 7 solicitor at FCB, providing annexed documents detailing searches of the Australian Business Register’s “ABN Lookup”, the Australian Securities and Investments Commission (ASIC) website and the online database of Equifax, a credit information provider.
[41] It was submitted these searches conducted by Ms Krajewski between 9 and 18 January 2018 were provided by BRI for the purpose of assisting the Commission and Mr Baker “identify the entities named in the course of the matter”. Further, BRI submitted the material was not filed in an attempt to address the substantive issue as to the identity of Mr Baker’s employer, asserting this is “not a matter to be determined in the current Application”.
[42] The annexures provided information as to current and historical details of a number of entities, including company summaries and ASIC extracts of the following:
• ABN 14 050 541 080 (The trustee for Leitner Family Trust T/A Consec Personnel Pty Ltd);
• ABN 34 132 818 421 (Business Risks International (WA) Pty Limited);
• ABN 20 608 644 855 (East-West Guarding Pty Ltd); and
• ABN 86 095 933 387 (Consec Personnel Pty Ltd).
[43] I made another attempt to resolve the matter through conciliation prior to the receipt of evidence at the hearing but this was unsuccessful.
[44] At the hearing, Mr Baker appeared on his own behalf while Mr Benjamin Gee was granted permission to represent BRI. In the course of proceedings, BRI tendered the affidavit of Mr Brett, who was subsequently called upon to give witness evidence.
[45] Mr Brett gave evidence and confirmed that during the discussions at the conciliation conference on 22 June 2017, he made a file note. This file note recorded the other attendees at the conciliation: Mr Baker and his support person, Mr Pinchen (Mr Baker’s representative), the Commission conciliator and a representative from BRI. Mr Brett said those individuals were in attendance throughout the conciliation. The file note also recorded that settlement was reached at 12.35pm and the various particulars of terms of settlement were discussed, such as the monetary amount to be paid ($3,460.00) and the payment terms, the agreement as to a resignation and the provision of a statement of service. It further included the statement “Deed will also include East West Guarding.” As to this, Mr Brett said the following:
• “My recollection of that is that in the course of explaining what the terms of the agreement were that had been reached I indicated to the applicant and the applicant's representative Mr Pinchin (sic) that East-West Guarding would be included as a released party under the deed, or a released beneficiary is another common term used, and that was acknowledged by the applicant's representative to be included in the deed.” 8
• “…I went through the standard terms included in terms of the non-disparagement, but also noted that East-West would be included as a release beneficiary, and that was a term that's not commonly used in the Fair Work Commission terms of settlement. And in that context I raised East-West Guarding, and on that basis Mr Pinchin (sic) agreed to them being included in the deed to that extent.” 9
[46] Mr Brett did not say that there was discussion about East-West Guarding having been the employer of Mr Baker.
[47] Mr Baker gave evidence that Mr Pinchen was his authorised representative at the conciliation. He also said he was on the telephone line throughout the conciliation and could hear the conversation between Mr Brett and Mr Pinchen. 10 However, Mr Baker said East-West Guarding was not mentioned during the conciliation and Mr Pinchen never told him about it. He said the first time he came across East-West Guarding was when he received the Deed.11
[48] The Commission is not bound by the rules of evidence but they provide a useful guide to the admission of evidence. The hearing of this matter was one in which the making of an agreement was in issue. As such, evidence of the agreement can be adduced. 12
[49] Mr Baker confirmed he was present throughout the conciliation conference, that his then representative, Mr Pinchen, acted with his authority and that a settlement agreement was reached at it. His evidence was he initially agreed with the settlement even though he was not happy with it. 13
[50] In essence, Mr Baker now disputes the parties reached a binding agreement at the conciliation on the basis there was no agreement reached that East-West Guarding was his employer, and that his objection lies with the recitals in the Deed having described it as such. BRI submits that it was agreed at the conciliation conference that East-West Guarding would be released.
[51] I accept that there may have been no discussion at the conciliation conference about East-West Guarding having been Mr Baker’s employer but I am satisfied that East-West Guarding was raised and it was agreed between the parties that it would be released as part of the settlement. In this respect, I prefer Mr Brett’s evidence, supported as it is by his contemporaneous file note, to the evidence of Mr Baker. Notwithstanding the text of the recitals, the terms of the Deed and its effect reflect the release of East-West Guarding that was discussed and agreed at the conciliation conference.
[52] In Masters v Cameron 14, the High Court held that where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. The three classes are:
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.
[53] Having regard to the evidence and material before me, I am satisfied that an agreement between the parties that comes within the first or second class of agreements outlined in Masters v Cameron was reached at the conciliation conference on 22 June 2017. The agreement reached was immediately binding and was not conditional on an agreement being signed. There was no evidence that Mr Pinchen acted outside his authority during the conciliation conference or that Mr Baker was not present throughout it. Mr Baker gave no indication during the conciliation conference that he did not agree with the terms of settlement and while I accept that he may have not have been all that happy with the terms, I do not accept, on the evidence before me, that he was placed under duress.
[54] In Australia Postal Corporation v Gorman 15, Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.16
[55] His Honour stated:
“[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.” 17
[56] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power to dismiss an application on the basis that it has no reasonable prospects of success.
[57] Section 587(1) of the Act provides as follows:
(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.
[58] As I have found that the parties reached agreement at the conciliation on 22 June 2017 and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. The settlement agreement that was made is a complete answer to Mr Baker’s claim that he was unfairly dismissed.
[59] For the reasons outlined above, I find that Mr Baker entered into a binding settlement of his claim and therefore, his application for unfair dismissal remedy is dismissed. An order giving effect to this will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Appearances:
Mr L Baker on his own behalf.
Mr B Gee for Business Risks International Pty Limited T/A BRIsecurity.
Hearing details:
2018.
Melbourne:
February 1.
<PR600395>
1 (1954) 91 CLR 353 at [360]-[361].
2 Exhibit R1.
3 (1954) 91 CLR 353.
7 Exhibit R2.
8 Transcript PN 122.
9 Transcript PN 146.
10 Transcript PN 225-234.
11 Transcript PN 148.
12 Evidence Act 1995 (Cth), s.131(2)(f).
13 Transcript PN 74 and 206.
14 (1954) 91 CLR 353 at [360]-[361].
15 [2011] FCA 975.
16 Ibid at [31].
17 Ibid at [33].
Printed by authority of the Commonwealth Government Printer