DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Abdolrazagh Sharif Kanani
v
Salini Australia Pty Ltd
(U2019/7823)

Application for an unfair dismissal remedy – binding settlement agreement reached – no reasonable prospects of success – application dismissed.

[1] Mr Arbdolrazagh (Abdul) Sharif Kanani (Applicant) has made an application in which he seeks relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Salini Australia Pty Ltd (Respondent) from 13 August 2018 until 3 July 2019 when his employment was terminated for reasons associated with working in an unsafe manner.

[2] The Respondent objects to the application proceeding on the grounds that it says it reached a binding settlement agreement with the Applicant that acts as a bar to his unfair dismissal application. That agreement was reached prior to the Applicant making his unfair dismissal application.

[3] Submissions were sought from the Applicant and the Respondent as to whether there was a binding agreement reached between the parties and, if so, why the application for unfair dismissal should not be dismissed on the grounds that it had no reasonable prospect of success.

[4] Whether there is a binding agreement is a contested matter between the parties. For this reason, the matter was required to go to a hearing or conference.

[5] Following hearing from the Applicant and the Chamber of Commerce & Industry of WA for the Respondent I decided to deal with the matter by hearing.

Witness Evidence

[6] Evidence was given in the matter by the Applicant, Mr Vinnie Molina of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and Mr Trevor Dobson and Ms Karen Seneviratne of the Respondent.

[7] Mr Molina gave evidence that the Applicant approached the CFMMEU (union) at the time he was dismissed from employment seeking assistance. Mr Molina said he told the Applicant he could not assist unless the Applicant joined the union. The Applicant did so.

[8] Mr Molina has been a union official for over 20 years and said he has been involved in many settlements in relation to termination of employment and considers he is well experienced in dealing with such matters.

[9] Mr Molina gave evidence that the Applicant said that he wanted his job back. Mr Molina said he would talk to the Respondent and see what was possible. Mr Molina spoke to Mr Dobson from the Respondent and asked the Respondent to reconsider its position. Mr Dobson got back to Mr Molina and said that it would not take the Applicant back into employment but was prepared to discuss a more favourable termination. Mr Molina relayed this to the Applicant who, he said, indicated that he did want his job back but was prepared to listen to an offer. Mr Molina said he confirmed the offer (of an additional two weeks’ pay – the settlement amount) with the Applicant who confirmed he was happy with the offer. Mr Molina confirmed acceptance of the offer by email to Mr Dobson.

[10] Mr Molina said he could recall the phone conversation he had with Mr Dobson on 8 July 2019 in which they discussed the dismissal of the Applicant and what might be possible. Mr Molina agreed that he received an email from Mr Dobson detailing the proposed settlement and that this was what he discussed with the Applicant. He said he replied to the email confirming acceptance by the Applicant following that discussion.

[11] On questioning by the Applicant, Mr Molina said he did not confirm agreement of the settlement with Mr Dobson until after he spoke to the Applicant by telephone and the Applicant confirmed he was happy with the offer.

[12] Mr Molina said that it is the union’s policy not to provide assistance to non-members of the union and he would not have assisted the Applicant if he had not joined the union.

[13] Mr Dobson gave evidence that he has dealt with Mr Molina off and on over many years. He said that he has never had cause to question his interactions with or integrity of Mr Molina.

[14] Mr Dobson said that Mr Molina spoke to him on 5 July 2019 about the Applicant. He considered what Mr Molina put to him and advised Mr Molina that the Applicant would not be given his job back. On 8 July 2019 they discussed a financial settlement. Mr Dobson recorded this in a written file note 1 and on a file copy of the termination letter.2 In the conversation on 8 July 2019 Mr Dobson said that Mr Molina raised the further issue of a statement of employment for the Applicant.

[15] Following the 8 July 2019 conversation Mr Dobson confirmed the offer in an email on 10 July 2019 to Mr Molina. That evening he received an email from Mr Molina indicating that the offer was accepted. 3 Mr Dobson gave directions to Ms Seneviratne to make the settlement payment to the Applicant. This was actioned on 11 July 2019. Mr Dobson said that, on the basis of the payment, he understood that the matter was settled and that there would be no further claims in relation to the Applicant’s dismissal.

[16] On 15 July 2019 Mr Dobson received a call from Mr Molina indicating that the Applicant had not received a payslip. Mr Dobson sent a copy of the payslip, along with a signed statement of service letter, to the Applicant. The email attaching these documents indicated that any queries about the payments should be directed to Ms Seneviratne.

[17] Mr Dobson gave evidence that there was no doubt in his mind that Mr Molina was talking to him as the representative of the Applicant.

[18] Mr Dobson gave evidence that he next saw the Applicant on 19 July 2019 when the Applicant came to the office apparently looking for the Project Director and Finance Manager. They were not at the office so Mr Dobson met with the Applicant. Mr Dobson said it was difficult to fully comprehend what the Applicant was saying but he canvassed a range of issues at work including bullying, complaints of other employees and other matters. Mr Dobson said the Applicant did not raise anything about the settlement. Mr Dobson asked the Applicant to put his concerns in writing. The Applicant sent his concerns to Mr Dobson by email on 22 July 2019. 4 Mr Dobson said this correspondence did not canvass the settlement.

[19] Ms Seneviratne gave evidence that on 11 July 2019 she received a direction from Mr Dobson to process the termination pay for the Applicant. 5 She did so and included the “settlement” amount of 2 weeks’ pay in accordance with the direction.6

[20] Ms Seneviratne said that on or about 15 July 2019 she was asked by Mr Dobson to send him a copy of the Applicant’s payslip. After this she said she received a phone call from a “union guy” who was with the Applicant. She cannot recall the name of the union representative but does remember that the Applicant indicated he was on the call. She said that conversation canvassed how certain amounts in the final pay of the Applicant had been calculated including annual leave, Rostered Days Off and allowances. Ms Seneviratne said that there was no mention on that call of the settlement payment.

[21] Ms Seneviratne said that she received no other phone calls from the Applicant about the payments made to him.

[22] The Applicant gave evidence that following his dismissal he went to the Fair Work Commission (Commission) premises in Perth to get some assistance. He was given a Form F2 – Unfair dismissal application. He said he did not know where to get help so went to the CFMMEU. In his written material he said that he was told that as he was not a union member the CFMMEU could not take legal action on his behalf but would try to help him. 7 In his oral evidence he said that Mr Molina told him he would make representations to Mr Dobson if the Applicant joined the union. He said Mr Molina said that he would try and get the Applicant’s job back but if that was not successful, the Respondent might offer him some more money.

[23] The Applicant said he had to chase up Mr Molina by text as he did not hear from him. He said that a few days later Mr Molina contacted him and said the Respondent would not give him his job back but would offer him money. The Applicant said he was not aware that Mr Molina had confirmed his acceptance of this proposal.

[24] The Applicant said that when he received a higher amount than expected in his bank account he went to see Mr Molina. He said Mr Molina was not there and he got talking to another person in the union office (whose name he does not know). When Mr Molina arrived Mr Molina called the Respondent to get a copy of the Applicant’s payslip sent to him. The Applicant said he got the payslip when he went home and he then telephoned Ms Seneviratne. He said she got quite angry. The Applicant said he told Ms Seneviratne that he did not want the extra money and asked her to take it back. He said that Ms Seneviratne explained to him that she could not do that as it was now in his bank account.

[25] The Applicant agreed that when he met with Mr Molina about the payment he received, Mr Molina did call Ms Seneviratne and that he was present at the time. He said however that he was not paying attention and was talking to the other person he had met in the union office.

[26] The Applicant said that he did not accept the settlement that is set out in the emails between Mr Dobson and Mr Molina. He said that if he had agreed Mr Molina would have sent the email from Mr Dobson to him.

[27] The Applicant did agree that he has not sent the settlement amount back to the Respondent nor tried to work out how he could get it back to them.

[28] The Applicant suggested that both Mr Molina and Ms Seneviratne were not telling the truth in their respective evidence. Whilst he said Ms Seneviratne was not being truthful because she would lose her job if she was, he could give no reason as to why Mr Molina might not tell the truth.

Findings

[29] I have carefully considered the evidence of each of the witnesses. Much of the evidence is in conflict:

•  The Applicant says that he did not agree to the settlement and disputed it with Ms Seneviratne and Mr Dobson. Ms Seneviratne and Mr Dobson say they did not have such a conversation with the Applicant;

•  Mr Molina said there was a settlement that he discussed with the Applicant and to which the Applicant agreed. The Applicant says he did not agree;

•  Ms Seneviratne said there was only one conversation with the Applicant along with a “union guy” and that the Applicant did not raise the settlement amount. The Applicant said he did;

•  Mr Dobson understood he had reached a settlement in relation to the dismissal and that Mr Molina was acting at all times for the Applicant. The Applicant said he did not reach an agreement.

[30] I am satisfied on the basis of the evidence that Mr Molina did negotiate a settlement on behalf of the Applicant with Mr Dobson. I have reached this conclusion for the following reasons.

[31] I am satisfied that Mr Molina firstly spoke to Mr Dobson about getting the Applicant’s job back and, when this was unsuccessful, spoke to him of a financial settlement. On receiving an offer from Mr Dobson I am satisfied that Mr Molina spoke to the Applicant and told him he would not be getting his job back but there was a settlement amount offered.

[32] I do not accept the evidence of the Applicant that he disputed the settlement amount with Ms Seneviratne or that he raised the settlement with Mr Dobson.

[33] I accept that the Applicant raised a number of issues when he met with Mr Dobson on 19 July 2019. He said in his email to Mr Dobson on 22 July 2019 that he “was never given a chance to reply or defend to the alleged accusations against me” (sic) and that he “would like Salini to reconsider my dismissal in regard to this information that I have supplied.” (sic) However, I accept the evidence of Mr Dobson that the Applicant did not raise with him that he never agreed to the settlement. The Applicant had the opportunity to put this detail in writing to the Respondent following his meeting with Mr Dobson on 19 July 2019. He had time to calm himself and make sure he expressed his views clearly before he put in his written statement to Mr Dobson. Despite this he did not state that he had never agreed to the settlement. Given his failure to include such an important detail in his written correspondence to Mr Dobson I prefer the evidence of Mr Dobson to that of the Applicant with respect to the meeting of 19 July 2019.

[34] I accept the evidence of Ms Seneviratne that she only spoke to the Applicant once about his final payment and that this was while he was with the “union guy” and that he did not raise the settlement amount. Ms Seneviratne presented as an honest and credible witness who was not moved by the insistence of the Applicant that he spoke to her a second time. The Applicant did not put to Ms Seneviratne that she was lying to protect her job and I do not accept his assertions on this point. The Commission questioned Ms Seneviratne as to who prepared her witness statement and whether she had been given any instructions in respect to its contents. She said she had not been instructed as to its content or her evidence and I accept her evidence on this.

[35] Having accepted Ms Seneviratne’s evidence as to the number of discussions she had with the Applicant, and the content of her discussion, I must necessarily find that the Applicant’s evidence on this matter was not credible. This was reinforced by his unsubstantiated claims as to Ms Seneviratne’s motivations. The Applicant’s attempt to besmirch Ms Seneviratne’s character without giving her an opportunity to respond to quite a serious allegation does him no credit. It certainly does not cast any doubt over Ms Seneviratne’s evidence.

[36] I have also decided that I prefer the evidence of Mr Molina to that of the Applicant that the Applicant did accept the settlement amount in settlement for his claim to have been unfairly dismissed by the Respondent.

[37] There is a direct conflict in the evidence between Mr Molina and the Applicant. Mr Molina attended the hearing and gave evidence at the request of the Commission. Mr Molina is an experienced union organiser. He has been involved in dealing with similar issues in the past. Mr Dobson attested to his honesty and reliability. I consider Mr Molina’s evidence more credible and more reliable than that of the Applicant.

[38] There is no evidence that the Applicant sought to clarify the situation or status of the settlement with Mr Molina either before or after he fully understood that the Respondent believed a settlement had been reached. He did not seek to call Mr Molina to give evidence, yet Mr Molina is the only other person who could give evidence as to what had occurred in the discussions. No credible reason has been put to the Commission by the Applicant as to why Mr Molina’s evidence should not be accepted.

[39] I am therefore satisfied that Mr Molina, having negotiated a settlement amount with Mr Dobson (of an additional two weeks’ pay to that already paid in notice to the Applicant) put that proposal to the Applicant, the Applicant accepted the settlement amount (although I do accept he wanted his job back) and this was as conveyed to Mr Dobson in an email from Mr Molina on 10 July 2019. I am not satisfied, on the evidence before me that the Applicant indicated to Ms Seneviratne or to anyone else from the Respondent that he did not accept the settlement amount.

Consideration

[40] In Masters v Cameron 8 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 cases. It may be one in which 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. Or, secondly, 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. Or, thirdly, 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.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. 9

[41] The Full Bench of Fair Work Australia confirmed the above decision in Curtis v Darwin City Council 10 at [62].

[42] Mr Farrell for the Respondent put, and I accept, that the type of agreement entered into in this case is the first type referred to in Masters v Cameron. That is that the Applicant and the Respondent reached an agreement with the intention that the parties be “immediately bound” by those terms. To the extent that the parties intended to have the terms restated in a form “more precise but no different in effect” this step was not completed. This however does not alter the fact that an agreement was reached.

[43] In this case I have found that I prefer the evidence of Mr Molina to that of the Applicant. Mr Molina is an experienced union organiser. Nothing was put before me as to why he would not have acted on the instructions of the Applicant in advising Mr Dobson that the settlement was agreed. The Applicant was a member of the union – he would not have received assistance otherwise. To this extent I reject the statement of the Applicant in his written submissions that the union said to him, once he had become a member, that they were “not able to take legal action against Salini as you are not a union member but we will try to help you if we can.”

[44] I do not read any significance into the difference in settlement wording between the emails from Mr Dobson and Mr Molina. The Applicant was entitled to one weeks’ notice paid at the appropriate rate of pay including overtime. Mr Dobson confirmed that this plus two weeks’ pay at the ordinary rate along with the statement of employment would settle the matter. Mr Molina replied that the matter would settle for “one full week’s (sic) inclusive of overtime and two 38 hrs weeks.” 11 I do not see the difference in wording as indicative of any difference between that put by Mr Dobson and that confirmed by Mr Molina. The Applicant, having raised the issue, did not suggest the significance of the difference.

[45] I am therefore satisfied that a binding agreement of the first type referred to in Masters v Cameron was reached between the parties.

[46] Given the existence of a binding agreement between the Applicant and Respondent the Commission has the power under s.587(1) of the FW Act to dismiss an application on the basis that it has no reasonable prospects of success.

[47] Section 587(1) of the FW Act provides as follows:

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.

[48] I am satisfied that the agreement reached between the Applicant and Respondent “extinguishes the existing cause of action”. 12 On this basis, continued pursuit of the unfair dismissal application “is clearly capable of being considered to be…without reasonable prospect of success.”13 I am therefore persuaded that I should exercise my power under s.587(1)(c) of the FW Act to dismiss the application on the basis that it has no reasonable prospects of success.

[49] As Mr Sharif Kanani has entered into a binding settlement of his claim his application for unfair dismissal remedy is dismissed. An Order 14 to this effect will be issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Mr A Sharif Kanani on his own behalf.

Mr S Farrell of the Chamber of Commerce & Industry of WA with Mr T Dobson for the Respondent.

Hearing details:

2019.

Melbourne via videolink to Perth:

September 25.

Printed by authority of the Commonwealth Government Printer

<PR712876>

 1   Exhibit R1, attachment TD4.

 2   Exhibit R1, attachment TD5.

 3   Exhibit R1, attachment TD6.

 4   Exhibit R1, attachment TD11.

 5   Exhibit R2, paragraphs 9-10.

 6   See Exhibit R2, attachment KS2; exhibit R1, attachment TD10.

 7   Applicant’s written submissions.

 8   [1954] 91 CLR 353.

 9   Ibid at 360.

 10   [2012] FWAFB 8021.

 11   Exhibit R1, attachment TD8.

 12   Australia Post v Gorman [2011] FCA 975 at [31].

 13   Ibid at [33].

 14   PR712877.