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[2023] FWC 633
General information, not legal advice.
Fair Work Commission
2023-03-21
Original judgment source is linked above.
[39] The conciliator's email and attachments were received by Mr Mattner and Trendscape on 15 January 2023.
[40] Following receipt, Mr Mattner recalculated the settlement sum. He did so because it had been agreed that the quantum was to be double-checked and he had done so at the conciliator's request the day prior. Mr Mattner altered the quantum on the deed to $22,976.70 so as to include the three days of wages owing, and sent Trendscape the amended deed.[15]
[41] On 18 January 2023 Trendscape (via Mr Scarpantoni's administrative officer) emailed Mr Mattner advising that accrued sick leave is not paid out on termination (a sum which had been included in the initial deed), and asking for information about what day Mr Mattner had used as the termination date.[16]
[42] By return email, Mr Mattner agreed that sick leave should not have been included. He altered the quantum on the deed to $22,415.70 by removing that sum (but retaining the additional sum for three days of unpaid wages). Mr Mattner signed the further amended deed and sent it to Trendscape for their signature.[17]
[43] The Commission was not copied into these email communications between Mr Mattner and Trendscape between 15 and 18 January 2023 as the conciliator's correspondence had indicated that this was not required.
[44] After sending the signed amended deed to Trendscape at 4.51pm on 18 January 2023, Mr Mattner received no response.
[45] Trendscape did not sign the deed. Not having signed the deed, Trendscape did not pay Mr Mattner the settlement sum within seven days (as provided for in the deed) or at all.
[46] Mr Scarpantoni's administrative officer drew the deed as sent and signed by Mr Mattner on 18 January 2023 to his attention. Before signing, Mr Scarpantoni decided to further investigate Mr Mattner's conduct whilst employed. Over the following week he formed the view that Mr Mattner had been conducting a private gardening business on weekends contrary to employment obligations, had tried to recruit a Trendscape employee to work in that business, had been putting private expenses on a Trendscape account and had been excessively using fuel and internet data on a work supplied vehicle and phone.
[47] Aside from the fuel usage, none of these issues had been put to Mr Mattner. At the hearing, Mr Mattner provided a response to each of these issues. I mention them not as findings of fact but to contextualise the sequence of events.
[48] On 25 January 2023, fourteen days after the conciliation and not having heard from Trendscape or received the settlement sum, Mr Mattner wrote to the Commission advising of the events since conciliation and that the settlement had not been given effect to.
[49] On 27 January 2023 Mr Mattner was informed by a Commission case manager that "if the respondent has failed to meet the settlement, you can request to re-open your case".[18]
[50] On 29 January 2023 Mr Mattner again wrote to the Commission seeking assistance, repeating the contents of his 25 January 2023 email.
[51] On 30 January 2023 a Commission case manager asked Mr Mattner to "confirm if both parties have signed the terms of settlement and if your (sic) requesting for the matter to be re-opened". This email was copied to Trendscape.[19]
"I have signed the terms of agreement and emailed to the Respondent on January 15, 2023. I received an email on January 18 regarding sick leave not paid out. I therefore adjusted the figure removing sick leave and emailed it on January 22, 2023 and have received nothing back. The respondent has failed to sign the terms of settlement. I am requesting this matter be re-opened please."
[53] On 31 January 2023 Trendscape replied. The administrative officer, on behalf of Mr Scarpantoni, advised the Commission (copied to Mr Mattner) as follows:[20]
"Questions remain unanswered regarding resignation/termination, anomalies on the fuel card where the resignation originated, and moonlighting on weekends using company assets to carry out extraordinary work outside of Trendscape business without prior approval. Furthermore, this extraneous activity adversely affected Trendscapes business. Weekends are provided to employees to rest so they can have work-life balance and fresh for the week ahead etc.
Val would like to reopen the case in light of evidence that has come to light through the examination of historical records.
[54] Was there a binding settlement agreement?
[55] This is a question of fact. It matters not that Mr Mattner or Trendscape may, for different reasons, have had second thoughts about an earlier settlement (if one had occurred) or its terms.
[57] A binding settlement agreement exists where there is an offer and acceptance which precisely correspond and where communications between the parties and their conduct expresses, objectively, an intention to make a concluded bargain.[24]
[58] 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.[25]
[59] As noted by a full bench of the Commission in Singh v Sydney Trains:[26]
"[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. 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."
[60] That both Mr Mattner and Trendscape agreed before the conciliator to a settlement on terms outlined at the time by the conciliator and subsequently sent to them in writing, is objective evidence weighing strongly in favour of a finding that a binding settlement agreement was reached on 11 January 2023.
[61] With one caveat, the conciliator's correspondence of 11 January 2023 and sent on 15 January 2023 (with covering email) supports such a conclusion. The letters sent by the conciliator dated 11 January 2023 advise that "you reached a "settlement agreement". The deed is referred to as the "Terms of Settlement". The covering email refers to "your settlement letter".
[62] With one caveat, the conduct of the parties following the conciliation also points in this direction.
[63] Mr Mattner signed the settlement deed on or about 18 January 2023 and sent it to Trendscape for signing, as requested by the conciliator.
[64] For fifteen days between 15 and 31 January 2023 Trendscape had possession of the conciliator's correspondence and the deed yet did not advise Mr Mattner nor the Commission that the deed as sent by the conciliator was unacceptable or did not represent their agreement. As had been agreed, Trendscape communicated with Mr Mattner after checking the quantum calculated. Only on 31 January 2023 did Trendscape object because of "evidence that has come to light through the examination of historical records". That is, an examination of historical records by Mr Scarpantoni following the conciliation.
DEPUTY PRESIDENT: "Is it right to say between 22 January...and 31 January...that you had uncovered what you considered to be a range of historical matters and you no longer believed it was appropriate to settle the matter?"
DEPUTY PRESIDENT: "So to the extent that there was an agreement subject to recalculation, you didn't believe it was appropriate to proceed with that agreement?"
MR SCARPANTONI: "Yes. I didn't believe it was appropriate."
[66] Even had Mr Scarpantoni not acknowledged this in his oral evidence, I would have made a finding to that effect as the inference from Trendscape's silence between 11 and 31 January 2023 together with the contents of its email of 31 January 2023 is irresistible to that effect. Trendscape's refusal to sign the deed and implement the settlement was not the product of double checking the calculations over quantum or that it did not owe Mr Mattner his statutory entitlements. It was because Mr Scarpantoni came to consider Mr Mattner as undeserving in light of new information he had obtained.
[67] However, a caveat exists. A private negotiation over quantum of the settlement sum occurred between the parties in the week after the conciliation and before Mr Mattner signed the deed. Mr Mattner made two variations to the settlement sum.
[68] Was this a continuation of an earlier and continuing but incomplete negotiation? I think not.
[69] The context surrounding this negotiation is relevant. It was not unexpected. It was the product of both sides double checking the settlement sum. Doing so was contemplated at the time the settlement agreement was reached. It was not a private frolic of the parties or one of them. The conciliator's covering email attaching the settlement terms of 15 January 2023 stated:
"If the payment amount has changed following settlement at conciliation, and the Respondent agrees to pay the (higher) revised amount, please amend the original amount under your Terms of Settlement accordingly and both sign."
[70] It is apparent from the above that revisions to the quantum of the settlement sum were contemplated at least by the conciliator and that if a higher amount was agreed between the parties, then that higher amount would be substituted for the quantum set out in the deed and which had been agreed at the conciliation. Through their exchange of emails on 14 and 18 January 2023 that calculation gave rise to one claimed addition and one agreed subtraction.
[71] It is in this context that Mr Mattner's variations to the settlement deed must be viewed.
[72] I take into account that the statement made by the conciliator in the email of 15 January 2023 to the effect that the quantum could be further negotiated is not objective evidence of a bargain between the parties to that effect.
[73] However, the fact that it was stated contextualises the discussion over quantum that occurred between the parties between 15 and 18 January 2023.
[74] The evidence of Mr Scarpantoni was clear as to his understanding at the conclusion of the 11 January 2023 conciliation:[28]
MR SCARPANTONI: "...I said look whatever I owe Mr Mattner I will pay Mr Mattner but my bookkeeper does not return until next week and if I could get her to sort of check his calculation by all means we will just finalise this and we can both move on."
DEPUTY PRESIDENT: "So, from your perspective at least, was there an agreement to make that payment to Mr Mattner subject to the amounts being checked?"
MR SCARPANTONI: "...I gave it to [my bookkeeper] to check the final amount and if the final amount correlated with what Mr Mattner had then we would finalise the amount and I would sign the documentation, I would agree and that would be the end of the matter."
"I gave it to Lisa again because Lisa would actually sort of deal with all the payroll. We discussed this and she alerted me to the fact that sick leave shouldn't be paid out. I said well now this is starting to get confusing. So in the process I sort of delved deeper and then everything started to become a little bit muddy..."
[77] I take into account that Trendscape did not sign the deed. This however is not evidence that an agreement was not reached on 11 January 2023. The settlement was declared by the conciliator and acknowledged by the parties. That declaration was confirmed by the conciliator in writing and set out in the terms of the deed sent four days later. As noted, Trendscape did not sign or implement the deed for reasons unrelated to whether an agreement had, in fact, been reached.
[78] Whilst this matter is not attended to without some doubt given the terms of the conciliator's email of 15 January 2023 and the negotiation that ensued, on the balance of probabilities it is open to find, and I do so, that Mr Mattner and Trendscape reached an agreement in conciliation on 11 January 2023 on terms of a contractual nature in settlement of matter U2022/11793 and also agreed that those terms will be dealt with by subsequent formal documentation. One of those terms was that the calculation of the agreed settlement sum would be double checked, and if after checking a higher amount was agreed, that would be paid. There was no suggestion that the settlement sum would not be paid or that settlement would not proceed according to its terms.
[79] The agreement was as described by the conciliator at the conclusion of the conference on 11 January 2023 as reflected in the terms of the deed sent by the conciliator on 15 January 2023, subject to the settlement sum quantum being checked.
[80] Both parties checked the calculation which resulted in a claimed addition of three days of wages owing ($792.00 as sought by Mr Mattner) and the deletion of a sum for sick leave not taken ($561.00 as sought by Trendscape). This re-checking was contemplated by the 11 January 2023 agreement.
[81] The evidence before me is that the sick leave deduction was expressly agreed between Trendscape and Mr Mattner on 18 January 2023. However, there is no evidence of an express agreement by Trendscape to the additional three days of wages added to the calculation by Mr Mattner. Even though Mr Mattner believes this sum is owing, I do not conclude that Trendscape's agreement to this sum can be inferred from its silence between 22 and 31 January 2023.
[82] Accordingly, I find that the agreed quantum after rechecking was the settlement sum as advised by the conciliator on 15 January 2023 ($22,184.70) less an agreed deduction of $561, being the sum of $21,623.70.
[83] This agreement was a binding settlement agreement. It was either in the first category of Masters v Cameron or what is generally referred to as the fourth category as set out in Baulkham Hills. As the varied quantum was a varied but not additional term, the agreement falls more neatly into the first category of Masters v Cameron and I so find. Either way, it was a binding settlement agreement.
[84] A binding settlement agreement was made on 11 January 2023. It exists in the terms of the deed sent by the conciliator on 15 January 2023 with the stated quantum of the settlement sum reduced by $561.00 due to subsequent agreement made after checking, resulting in a settlement sum of $21,623.70.
[85] A binding settlement agreement evidenced by the deed obliges the parties to give effect to their agreement on its terms.
[86] There is one further issue arising. Mr Mattner made his application (on the advice it seems, of an officer of the Fair Work Ombudsman) before his alleged dismissal took effect. Whilst it has been unnecessary to determine other jurisdictional issues in light of my finding that a binding settlement agreement existed, existing Commission authority suggests that a premature application may be an irregularity requiring waiver under s 586 of the FW Act.[31]
[87] This circumstance does not impact the effect of this decision because the binding settlement agreement includes a term which releases the employer from existing or future action.
[88] However, as this issue was not raised with me at the hearing, had I found that a binding settlement agreement did not exist then this issue would need to be dealt with in conjunction with the other jurisdictional and merit issues. In that circumstance, I would have provided the parties an opportunity to make submissions on this additional issue before further dealing with the application.
[89] In light of the above, it is not necessary to make findings or determine whether Mr Mattner was dismissed by way of forced resignation within the meaning of the FW Act.
[90] Nor is it necessary to determine whether, if dismissed, Mr Mattner's alleged dismissal was harsh, unjust or unreasonable or whether (if so) any remedy should be ordered.
[91] As both parties recognised in their concluding submission, it was unfortunate that their parting after a lengthy relationship in a small business took the turn it did and required arbitration. Mr Scarpantoni indicated that whilst he was agreeable to pay what was lawfully owed, he was looking for an independent assessment by the Commission. Via this decision that has been provided at least on the settlement agreement question.
[92] I consider it sufficient, at this stage, to deliver this decision and allow a period for the parties to confer and give effect to the terms of their settlement. I direct that the parties do so.
[93] This is preferable than making orders concerning the utility of further Commission proceedings or unnecessarily expressing views on the remaining issues litigated such as whether the conduct of one side or the other was fair or unfair or forced or not forced.
[94] It is also preferable to court proceedings. As noted, a binding settlement agreement evidenced by the deed obliges the parties to give effect to their agreement on its terms. Being the exercise of judicial power, a binding settlement agreement is enforceable by a court.
[95] Thus, the appropriate course is for the deed as sent by the conciliator on 15 January 2023 less the sum of $561.00 be given effect in accordance with its terms. I have found the settlement to have been the recalculated agreed sum of $21,623.70.
[96] The agreed terms provide for its signing, exchange and payment of the settlement sum (less tax) and provision of a statement of service within seven days.
[97] Although for reasons mentioned the sum of $792.00 claimed by Mr Mattner for three days of wages said to still be owing is not included in the settlement sum, this does not mean that this sum is not due and owing at law. It is simply not included because it was not agreed to be included.
[98] Having directed the parties to confer on implementation, I also recommend that they confer on whether the three days as claimed are still owed. Agreement on that matter would appear preferable to court proceedings or investigation of unpaid wages by regulatory authorities such as the Fair Work Ombudsman. However, resolution of that issue, if not reached within seven days, cannot and should not hold up the obligations parties have to implement the terms of their settlement agreement.
[99] The terms of settlement also provide for discontinuance once Trendscape gives effect to these terms. I draw to Mr Mattner's attention that discontinuance can be undertaken by filing a completed Notice of Discontinuance (form F50) or by email sent to the Commission.
If orders are sought disposing of the application in light of this decision, both parties have liberty to apply.
Mr V Scarpantoni, of and on behalf of Designer Gardens Pty Ltd T/A Trendscape Landscape Professionals
[1] Permission was granted at the hearing on 14 March 2023 to amend the respondent's name in these terms
[2] A1 Statement 2 March 2023; A2 Statement in Response 10 March 2023
[4] R1 Statement 3 March 2023; R2 Statement 10 March 2023
[5] A1 paragraphs 23-30; A2 paragraph 116; R2 paragraphs 122-124
[6] Email 'Chambers-Anderson DP' 14 March 2023, 9:11AM
[7] A1 Attachments O, P, Q, S, T, U and V; A3; R3
[8] Australian Postal Corporation v Gorman [2011] FCA 975 at [33] per Besanko J: "...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". See also Curtis v Darwin City Council [2012] FWAFB 802 and Lewer v Australian Postal Corporation [2023] FWCFB 56
[14] A1 Attachment P (first item attached)
[17] A1 Attachment R (third email) and Attachment S
[18] Emails at digital court book pages 4-9
[23] Singh v Sydney Trains [2017] FWCFB 4562
[27] Recording of Hearing, 14 January 2023, 1:22:20 - 1:22:45
[28] Recording of Hearing, 14 January 2023, 1:13:05 - 1:14:35
[29] Recording of Hearing, 14 January 2023, 1: 17: 44 - 1:18:05
[30] Recording of Hearing, 14 January 2023, 1:18:35 - 1:19:10
[31] Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070
Printed by authority of the Commonwealth Government Printer
Jarrett Dean Mattner
Designer Gardens Pty Ltd T/A Trendscape Landscape Professionals [2023] FWC 633
(1954) 91 CLR 353