Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 2132 of Commissioner Platt at Adelaide on 19 April 2021 in matter number (U2021/252) - permission to appeal refused.

[1] On 4 April 2021 and 6 July 2021 respectively, Mr K (the Appellant) lodged notices of appeal in which he sought permission to appeal a decision issued on 19 April 2021 by Commissioner Platt (Decision).[1]

[2] The Decision arose out of an application made by the Employer (the Respondent) under s.587 of the Fair Work Act 2009 (FW Act). The application sought to dismiss the unfair dismissal application lodged by the Appellant on the basis of a binding settlement agreement having been reached between the Appellant and the Respondent at the conclusion of a conciliation conference conducted by Commissioner Hampton on 18 March 2021.

[3] Commissioner Platt exercised his discretion under s.587 of the FW Act to dismiss the Appellant's application. He found that a binding settlement was reached in the terms contained in the transcript,[2] that the Agreement reached prevented the Appellant's pursuit of the s.394 application, and that the application had no prospects of success. The Appellant contends that Commissioner Platt erred in dismissing his application.

[4] Lawyers for the Respondent sought leave to appear. This leave was refused on the basis that the respondent's comprehensive submissions in writing be taken into account.

[5] This decision is concerned with whether the Appellant should be granted permission to appeal against the Decision. For the reasons that follow, permission to appeal is refused.

Relevant parts of the decision under appeal are reproduced below:

"[17] The principles to be adopted in determining if a binding settlement has been reached can be found in a review of Masters v Cameron and as confirmed in Subeg Singh v Sydney Trains.

[18] Masters v Cameron established three 'types' of agreement that can be entered into by parties engaging in a settlement. Of most relevance in this case is when:

'....the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to 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 no different in effect.'

[19] This majority go on to say that such an agreement:

"....((binds) the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not..."

[20] In Subeg Singh v Sydney Trains, the Full Bench found that whilst the issue of whether the parties have reached agreement on the essential terms of the contract may be a relevant factor in determining whether a binding agreement has been reached, the overarching question is:

"...whether there is an offer and acceptance which precisely correspond and whether the communications between the parties and their conduct expressed, objectively, an intention to make a concluded bargain." (emphasis added)

[21] In essence, if the parties to a matter reach finality and agree on the essential terms of the bargain, and their communication and conduct indicate that objectively, they intend to be immediately bound by those terms, the law recognises that they have reached a binding settlement, even if they propose to restate the terms in a fuller and more precise form that are not different in effect."

[22] A review of the transcript alone clearly establishes that an agreement was reached at the conciliation conference chaired by Commissioner Hampton. None of the additional information before me suggests otherwise.

• Mr K would be paid $22,824.24 gross (to be taxed in accordance with the law);

• the net amount would be paid into Mr K's bank or financial account with 14 days;

• the employment would be regarded as ceasing by way of resignation;

• a statement of service would be provided by the Employer;

• the terms of settlement would be confidential; and

• Mr K released the Respondent from all claims arising from the employment and the dismissal except for workers compensation and/or superannuation claims.

[24] Mr K's acceptance of that agreement is evident from the following exchange with Commissioner Hampton:

"So they are the terms that I have noted. They are the terms that I have communicated between you. And my understand is that that then represents a resolution. So Mr K, can you confirm that is the case?

[25] I find that the parties reached a 'binding settlement.' There is no suggestion that it was the product of fear, force or fraud.

[26] As a result of my finding that a binding settlement had been reached in the terms contained in the transcript, and that inter alia the Agreement prevents the continued pursuit of Mr K's s.394 application, I find that the substantive application has no prospects of success, and I exercise my discretion pursuant to s.587 to dismiss that application.

[27] In my view, the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should implement the agreed terms without delay." [citations omitted]

[6] The Appellant appealed on general grounds such as that 'This was an absolute abuse of power and process by the Respondent, this was unlawful, sexist, discriminatory and clearly bullying.' In relation to the public interest the Appellant made again general comments about the alleged inappropriate nature of his dismissal such as 'How can it possibly be in the publics best interest to persecute and exploit people over their sex lives, religious beliefs, for the sake of a good story and publicity, at their place of employment.'[3] The appeal grounds did not refer to any specific aspect of the decision under appeal.

[7] The Appellant made different but again general allegations in a second appeal document, which was out of time, lodged on 5 July 2021. Even if we extended time to receive the second appeal this would not make any difference to the proceedings, given the general nature of the alleged appeal grounds and this decision.

[8] The Appellant's submissions in support of his appeals were voluminous and we have taken them into account. They mainly relate to the alleged unfairness of his dismissal and the behaviour of a large number of individuals and groups and make little or no reference to the decision under appeal. The Appellant's oral submissions were similar in nature. We have taken into account the submissions made and material filed by the Appellant.

[9] The Appellant sent numerous emails to the Commission after oral hearings were concluded, and without seeking leave of the Commission to provide further submissions. In these emails the Appellant purports to specifically deal with the public interest,[4] but again by making complaints of a general nature about the Respondent's conduct in terminating his employment, and the unfairness of the termination. Even if we took this material into account, it provides no assistance to the Appellant.

[10] The respondent submitted that:

"2. The decision under appeal arises from an unfair dismissal application. As such, permission to appeal can only be granted in accordance with the requirements of s.400 of the Act which the Full Bench has previously identified as stringent. Section 400 of the Act provides:

• The FWC must not grant permission to appeal unless the FWC considers that it is in the public interest to do so.

• To the extent that the appeal is based on an error of fact, the appeal can only be allowed where the error is a significant error of fact.

3. Whilst the phrase 'public interest' is not defined in the Act, it has previously been noted by a Full Bench that the public interest will generally be satisfied if 'a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters'.

4. The Respondent respectfully submits that the Notice of Appeal does not identify any matter which satisfies the public interest test. The Appellant has not filed formal written submissions in support of why permission to appeal should be granted but has sent multiple emails to the Commission regarding this matter. The Respondent respectfully submits that whilst these emails should not form the basis of any formal submission to the Commission, they do not identify any matter which would satisfy the public interest test in any event.

5. In addition, the Respondent respectfully submits that neither the Notice of Appeal nor the Appellant's emails to the Commission raise any alleged error of fact (let alone a significant error of fact) by the Commission at first instance.

6. In those circumstances the Respondent respectfully submits that the test set out in s.400 of the Act is not satisfied and therefore permission to appeal should be refused."

[11] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[12] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] The public interest is not satisfied simply by the identification of error,[7] or a preference for a different result.[8] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[9]

[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[10] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[14] We have had full regard to the Appellant's submissions and appeal grounds. In those submissions the Appellant makes a number of complaints about the conduct of the Respondent and others including the alleged unfairness of his termination. However, this is not a hearing of the alleged unfairness of the Appellant's termination. The present matter concerns an appeal against a decision that the Appellant had entered into a binding settlement of the matter.

[15] The decision under appeal sets out the relevant law, the circumstances of the matter, how an agreement was reached, the nature of the agreement, and quotes the Appellant endorsing the agreement:

"So they are the terms that I have noted. They are the terms that I have communicated between you. And my understand is that that then represents a resolution. So Mr K, can you confirm that is the case?

[16] Little or no attempt was made to challenge the actual decision under appeal and to demonstrate that there was a public interest that should persuade us to grant permission to appeal, having regard to issues of fact or law. The Notices of Appeal and submissions, written and oral, do not identify any matter which satisfies the public interest test.

[17] Voluminous material was provided by the Appellant which the Full Bench has considered. Regrettably, the material filed by the Appellant does not address the issue at the heart of this appeal.

[18] For the above reasons, permission to appeal is refused.

[1] [2021] FWC 2132.

[3] Notice of Appeal questions 2-3, 3 May 2021.

[4] Eg. email received 6/08/2021 3:56 AM

[5] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).

[6] O'Sullivan v Farrer (1989) 160 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] - [46].

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], L_awrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth_ [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[9] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

[10] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

Printed by authority of the Commonwealth Government Printer