s.365 - General protections

Application to deal with contraventions involving dismissal - whether binding settlement agreement reached at conciliation - request to reopen.

[1] This decision concerns an application by Ms Kelly Thomas to reopen her general protections application, which was made pursuant to s.365 of the Fair Work Act 2009 (Act).

[2] On 17 October 2019, a conciliation was conducted before a Member of the Commission. For the purpose of the record, the matter was said to be settled and the file was closed.

[3] Ms Thomas contends that a binding settlement agreement was not reached at the conciliation and therefore the matter ought to be reopened. Western Scaffold disputes this.

[4] For the reasons set out below, the application to reopen is dismissed.

[5] The application was conciliated at or about 10:00 am on 17 October 2019. Shortly after its conclusion at approximately 10:52 am, Ms Thomas telephoned the Commission. The file note indicates that Ms Thomas held some concerns regarding what had been agreed to at the conciliation. She said that she would review the terms of settlement document upon receipt and write to the Commission outlining her concerns. The file note is consistent with Ms Thomas' evidence during the hearing.

[6] The next day, Western Scaffold emailed the Commission enclosing signed terms of settlement and confirmation that the agreed settlement sum had been paid to Ms Thomas. Shortly thereafter, Ms Thomas emailed the Commission advising:

"...I unfortunately have some concerns regarding the settlement proposal reached with the Respondent.

As we left the building, after yesterday's conference [sic] Mr Theofanidou wished me all the best, I thanked him & returned the sentiment. He reiterated by saying "I really do hope things work out for you", I felt this comment was disingenuous by his tone of voice and facial expression.

As we continued around the corner after exiting Court 8 Mr Theofanidou said something along the lines of how I did alright despite my claim not being true.

I replied that my claim had only truthful facts unlike the complete lies in his filed responses.

This petty back and forth conversation continued down until we reached the entrance steps of the building.

As we momentarily stood on the steps Mr Theofanidou congratulated me stating that he believes I "did well". I asked him what he was referring to which he replied that he believes I "executed a strategic plan". I was astonished by this accusation & categorically denied this claim immediately. His demeanor by this time was quite hostile towards me.

As a result of Mr Theofanidou's conduct, I have no confidence he is truly remorseful or that he will abide by the terms of the settlement. I believe he only accepted the proposed settlement so to finalise the matter with no admissions made as it benefits him more than it will me and allows that his account of facts stated will go unchallenged.

I will need to seek advice to decide how best to proceed in the matter. However as I have sent this email to yourself only I would appreciate advice regarding if I am required to send a copy to the Respondent also..."

[7] Later that day, in a further email to the Commission, Ms Thomas acknowledged that Western Scaffold had signed the terms of settlement and effected payment of the settlement sum. However, she contended that the payment was premature because she had not counter signed the terms of settlement. Ms Thomas indicated an intention to reverse the payment upon receipt.

[8] On 22 October 2019, Ms Thomas advised the Commission that she sought that her application be reopened. By email dated 4 November 2019, in support of this request, Ms Thomas said that she had not filed a notice of discontinuance to close her matter.

[9] In response, Western Scaffold submits that by signing the terms of settlement and effecting payment of the settlement sum, it complied with the outcomes reached at the conciliation. It said it would continue to "abide with all terms and conditions of the agreement."

[10] On 28 November 2019, in response to correspondence from the Commission regarding the reopener request, Ms Thomas emailed Western Scaffold requesting its banking details so that she could complete a reversal of the settlement sum, which was paid to her on 18 October 2019. Ms Thomas said that a remittal was not effected prior to this date because she was not instructed to do so. Further, Ms Thomas considered that remitting the sum would complicate matters if her application was not reopened, but the non-remittal of the sum should not be construed as acceptance.

[11] Directions were issued requiring the parties to address the question of whether a binding settlement agreement was reached at the conciliation. In her written submissions, Ms Thomas contends that a binding settlement was not reached. She did not understand that the terms of settlement included a release of all claims. This compromised her ability to pursue a concern regarding her payslip, as it related to her employment for the two-day period between 15 and 17 July 2019. She contends that the content and delivery of her payslip was not consistent with the Fair Work Regulations 2009 (Regulations).

[12] Western Scaffold's position is that a binding settlement agreement was reached at the conciliation. In support, it relevantly says:

1. It was made clear at the conciliation that the settlement would release Western Scaffold from all claims including future claims.

2. Ms Thomas reneged on the settlement on account of her exchange with Mr Theofanidou immediately following the conciliation. Ms Thomas' latest contention that she did not agree to a release of all claims is "completely false."

3. It strongly rejects the proposition that it has not complied with the Regulations.

[13] In deciding whether the application should be reopened, the issue to be determined is whether a binding settlement agreement has been reached.

[14] A Full Bench of the Commission, applying Masters v Cameron[1] and Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd,[2] made the following observation in respect of when a settlement agreement is binding:[3]

"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."

[15] Ms Thomas' immediate concern, communicated to the Commission in her 18 October 2019 email, was that Western Scaffold would not abide by the terms of settlement. No issue was raised by Ms Thomas with the terms themselves. Ms Thomas' contemporaneous email states that her concern was occasioned by her exchange with Mr Theofanidou, following which she held "no confidence" that he was "truly remorseful," or "that he will abide by the terms of the settlement."

[16] Ms Thomas complained that Mr Theofanidou "only accepted the proposed settlement so to finalise the matter with no admissions made." She said that "his account of facts stated will go unchallenged." These statements demonstrate that Ms Thomas considered that a settlement had been reached at the conciliation, but she had a subsequent change in mindset as to Western Scaffold's commitment to it. I consider that this lends support to the conclusion that Ms Thomas regarded the matter as settled at conciliation.

[17] In response, Western Scaffold advised that it would "abide with all terms and conditions of the agreement." In fact, it provided to the Commission and to Ms Thomas its signed terms in counterpart, and evidence of compliance with its payment obligation on 18 October 2019. I consider that Western Scaffold intended to be immediately bound by the settlement terms agreed to at conciliation, and this is reflected by its conduct.

[18] In further correspondence on 18 October 2019, Ms Thomas advised that payment of the settlement sum was premature in circumstances where she had not signed the terms of settlement in accordance with clause 2.1. No concern was raised regarding the release of all claims clause at this time. Ms Thomas rationalised this in the proceedings by stating that she had not "really read the terms of settlement." However, this is contrary to Ms Thomas' written submission that the first time she learned of the release of all claims clause was upon receipt of the terms of settlement document after the conciliation had concluded. Despite this, Ms Thomas did not raise the issue until 17 February 2020 notwithstanding her emails of 18 October 2019 and 4 November 2019, in which she cited specific clauses of the terms of settlement document without raising a separate issue regarding the release of all claims clause. In light of these matters, I prefer the evidence of Western Scaffold that it was communicated to the parties at conciliation that the settlement agreement would have the effect of releasing Western Scaffold from all claims including future claims.

[19] I am satisfied, in the circumstances, that a binding settlement agreement was reached consistent with the first category described in Masters v Cameron. While Ms Thomas did not produce to the Commission or to Western Scaffold signed terms in counterpart, this has no bearing upon my conclusion that the parties agreed to all terms at the conciliation and intended to be immediately bound by those terms. The parties understood that the terms of settlement would be reflected in a document issued by the chambers of the Commission Member.

[20] Given my conclusion at [19], the application has no reasonable prospects of success, and is therefore dismissed pursuant to s.587(1)(c) of the Act. The decision of the Federal Court in _Australian Postal Corpora[4]ion v Gorman_4 provides support for this conclusion.

[1] Masters v Cameron [1954] HCA 72; [1954] 91 CLR 353 at 360

[2] (1986) 40 NSWLR 622

[3] Subeg Singh v Sydney Trains [2017] FWCFB 4562

[4] [2001] FCA 975, while this matter concerned an unfair dismissal application the proposition remains apposite

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