Nolan v Benedict Recycling Pty Ltd [2016] FWC 4436 (5 July 2016) [2016] FWC 4436 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Brian Nolan v Benedict Recycling Pty Ltd T/A Benedict Recycling Pty Ltd (U2016/5004) DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 JULY 2016 Application for relief from unfair dismissal. [1] Mr Brian Nolan alleged the termination of his employment by Benedict Recycling Pty Ltd was unfair. Benedict denies the allegations. [2] Benedict applied to have Mr Nolan’s application dismissed on the basis that a binding settlement agreement was reached between the parties and as such his application had no reasonable prospects of success. [3] I granted permission to Benedict to be represented by a lawyer at the hearing as I accepted the submission that the matter involved some complexity and it would enable the matter to be dealt with more efficiently. [4] The issue in dispute is whether Mr Nolan authorised his representative, Mr Stephen Leslie of the Australian Workers’ Union (the AWU), to put an offer of settlement to Benedict’s representative as there is no dispute that Benedict accepted that offer. Mr Nolan then refused to sign a deed of release and sought to continue with his application. The history of the negotiations [5] Mr Stephen Leslie from the AWU was Mr Nolan’s representative from the commencement of proceedings. [6] The matter had been referred to conciliation but it had not settled. However negotiations towards a settlement continued after the conciliation. In all those negotiations Mr Leslie represented Mr Nolan. [7] Mr Leslie gave evidence at the hearing that on 26 April 2016 he spoke to Mr Nolan about a possible settlement. He proposed making an offer to Benedict of six weeks but that was rejected by Mr Nolan. Mr Nolan advised he was seeking eight weeks. There was discussion between Mr Leslie and Mr Nolan about this. Mr Nolan complained that he could have taken eight weeks at the beginning. Mr Leslie told Mr Nolan that six weeks was the best he was going to get. He asked Mr Nolan if he authorised him to do the deal and Mr Nolan said yes. Mr Nolan authorised him to settle the matter as best he could. Mr Leslie said that Mr Nolan told him he had had enough. Mr Leslie’s evidence was unequivocal Mr Nolan had authorised him to settle the matter. Mr Leslie’s file note of this conversation was tendered and it stated that Mr Nolan was OK with six weeks. 1 [8] Mr Leslie asked Mr Geoff Symington, another AWU employee, to convey this offer to Benedict’s representative and Mr Symington sent an email confirming a “firm offer” to settle the matter if Benedict agreed to pay Mr Nolan six weeks’ pay calculated at $1634.62 per week. [9] On 27 April 2016, Benedict’s lawyers sent an email advising that they had accepted the offer and they would forward a deed of release. 2 [10] On 27 April 2016, Mr Leslie called Mr Nolan and advised that Benedict had accepted the offer. Mr Leslie’s notes record that, and that Mr Nolan will need to discontinue the unfair dismissal application. There is nothing in those notes which disclose that Mr Nolan advised Mr Leslie that he had acted outside of his instructions. [11] The deed of release was emailed to Mr Symington on the morning of 2 May 2016 and Mr Symington agreed that he did not forward this to Mr Nolan. There were some amendments proposed by Mr Symington and those changes were made. [12] There was a further discussion on 2 May 2016 between Mr Leslie and Mr Nolan at 12.30pm. They discussed the offer. Mr Nolan’s file note records that “As instructed by Brian Nolan wants to move on and if firm on 6 weeks + no more – take it.” [13] Arrangements were made for Mr Nolan to attend the office so that the deed could be explained and he could sign it. He did not attend the office to sign the deed. [14] On 5 May 2016, Mr Symington sent Benedict’s representative an email advising that Mr Nolan had not attended to sign the deed due to work commitments and he was expected to come in on 9 May to sign it. [15] On 6 May 2016, Mr Nolan rang Mr Leslie, after his wife was told about some allegations about what had occurred at Benedict, and he told Mr Leslie that as a result he did not want to proceed with the settlement. Mr Leslie told him to have a think about it and in another phone call Mr Nolan confirmed that he did not want to proceed with the settlement. [16] Mr Leslie said that as a result the AWU determined not to act for Mr Nolan because it and his integrity were at stake. They filed a notice ceasing to represent him on 9 May 2016. [17] Mr Leslie spoke to Benedict’s lawyer on 2 June 2016 and when it was put to him that Mr Nolan contended that the offer was put without instructions, Mr Leslie said this was absurd and he told Benedict’s lawyers that Mr Nolan instructed him to put the offer. [18] Mr Symington gave evidence confirming what Mr Leslie told him but he did not speak to Mr Nolan about the settlement. [19] Mr Nolan denied authorising Mr Leslie to accept six weeks. He said he authorised Mr Nolan to negotiate directly with Mr Ian Collier from Benedict to cut out the lawyers. He accepts that Mr Leslie told him that the best he would get was six weeks but he said he should continue fighting to get a better deal than six weeks. He said he would not have agreed to six weeks because he had already rejected eight weeks and he wanted to clear his name. Mr Nolan submitted that there was no written communication from the AWU about the offer. Mr Nolan submitted that he had not been provided with the deed and he was entitled to seek legal advice before signing it. [20] Mr Nolan could not recall the phone call on 27 April 2016 and denied that he ever agreed to come in to sign the deed. He said Mr Leslie wanted him to come in to sign it but he told Mr Leslie he was not signing the deed. He denied he told Mr Leslie on 6 May 2016 that he had changed his mind. He said he told Mr Leslie about what had been said to his wife and told him he wanted to keep going with his application. Consideration [21] On the central question of whether Mr Nolan gave Mr Leslie instructions to settle the matter I prefer Mr Leslie’s evidence. I do so because his recollection of events is supported by his contemporaneous file notes and those file notes disclose that Mr Nolan was OK with the six weeks and do not disclose that Mr Nolan, on 27 April 2016, when advised that Benedict had accepted the offer, protested that such an offer was made without his agreement. If that had occurred there would have been no reason for Mr Leslie to seek to have Mr Nolan attend the offices to sign the deed. Had Mr Nolan told Mr Leslie that he was not proceeding with the settlement, then there would have been no reason for Mr Symington to negotiate changes to the deed. [22] I also accept Mr Leslie’s evidence that the union had no cause to settle this matter without Mr Nolan’s instructions. [23] While I accept that Mr Nolan would have preferred to have been paid at least the amount he had earlier rejected, I accept Mr Leslie’s evidence that he explained to Mr Nolan the reasons why that would not occur. [24] I do not accept that the failure of the AWU to provide a copy of the deed meant that no agreement was reached. While Mr Nolan says that he was entitled to obtain independent legal advice prior to signing the deed, he did not give evidence that he instructed the AWU that he would not settle his claim until such time as any deed of release was reviewed by a lawyer. Benedict had previously provided Mr Nolan with a deed of release when it had made an earlier offer to settle. I further do not accept the submission, that because there was no written communication between the AWU and Mr Nolan, that there was no agreement. [25] I am satisfied that Mr Nolan decided to proceed with his application despite the existence of an agreement negotiated by his representatives on his behalf. I am satisfied that when the AWU negotiated the settlement it did so on Mr Nolan’s instructions. [26] The High Court Masters v Cameron 3 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 deal 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. [27] In this case, Mr Nolan’s representative made an offer which was accepted. There was subsequently discussion about the extent to which the formal document reflected what was agreed and a final document was agreed between the representatives. Mr Nolan did not submit that there were any matters apart from the amount that were in issue. However, even if there were, I am not required to determine if the deed reflected what was agreed. [28] As the Full Bench held in Zoiti-Licastro v Australian Taxation Office : 4 "It is clear that the settlement agreement drafted by the ATO's solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant's focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005." [29] That approach was endorsed by the Full Bench in Curtis v Darwin City Council. 5 [30] I am therefore satisfied that a binding agreement had been reached of either the type described in category 1 or 2 of Masters v Cameron . [31] Section 587 of the Fair Work Act 2009 provides the Commission with a discretionary power to dismiss a matter if it has no reasonable prospects of success. In Australian Postal Corporation v Gorman the Federal Court held that: “a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such a cause of action is clearly capable of being considered to be frivolous or vexation or without reasonable prospects of success.” 6 [32] As I am satisfied that a binding agreement was made I am satisfied that Mr Nolan’s application has no reasonable prospects of success. Further, I would exercise my discretion in those circumstances to dismiss his application. Mr Nolan was represented in the settlement negotiations by his union. It cannot be suggested that Mr Nolan was at any particular disadvantage in those negotiations. Further I do so because I consider that parties who reach agreements should be held to those agreements. Prior to a final agreement being reached parties are free to negotiate the terms on which they will agree. They can include whatever terms they want including making an agreement subject to a deed being signed. However once an agreement is reached a party is not entitled to change his or her mind. [33] I therefore dismiss Mr Nolan’s unfair dismissal application. DEPUTY PRESIDENT Appearances : B. Nolan on his own behalf. L. Sowden for the Respondent Hearing details: 2016. By video link, Melbourne and Sydney: June 30. 1 Exhibit R2 2 Exhibit R1 3 [1954] HCA 72 4 PR967544 5 [2012] FWAFB 8021 at [71] 6 [2011] FWC 975 at [33] Printed by authority of the Commonwealth Government Printer <Price code C, PR582392>