Kells v JBS Australia Pty Limited - Cobram [2017] FWC 198 (14 February 2017) [2017] FWC 198 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Waylon Kells v JBS Australia Pty Limited - Cobram (U2015/16851) DEPUTY PRESIDENT CLANCY MELBOURNE, 14 FEBRUARY 2017 Application for relief from unfair dismissal – matter settled – application dismissed pursuant to s.587 of the Act. [1] On 16 December 2015, Mr Waylon Kells made an application for remedy for unfair dismissal (the Application) under s.394 of the Fair Work Act 2009 (the Act). [2] The matter was listed for Conciliation on 15 February 2016, however, it did not resolve at that time. The matter was then listed for Arbitration Conference/Hearing and directions were issued. [3] On 29 April 2016, JBS Australia Pty Limited – Cobram (JBS) sent an email to the Commission advising that it was in settlement discussions with Mr Kells’ representative Ms Candy. On 9 May 2016, Ms Candy emailed the Commission to advise that “JBS and Mr Kells came to a heads of agreement for settling this matter … However, the terms and conditions of the settlement have not been agreed as yet and I understand Mr Murraylee is on leave and out of contact for a period of two weeks. We will confirm that terms have been settled once Mr Murraylee returns”. [4] Mr Murraylee of JBS responded to this correspondence from Ms Candy by stating that although he had thought that everything that was discussed had been incorporated in the settlement terms, he would “review any issues or changes” Ms Candy would like to suggest. On 10 May 2016, Ms Candy emailed Mr Murraylee of JBS in reply and stated that Mr Kells was “very happy with the settlement and the standard terms” and informed JBS that they “just routinely don’t fully formally withdraw until the terms are settled”. [5] On 16 May 2016, a Notice of Listing was sent to parties vacating Directions due to the advice received regarding settlement. This correspondence stated that a Notice of Discontinuance was to be filed with the Commission in due course. Subsequently, the Arbitration Conference/Hearing listed for 9-10 June 2016 was also vacated. [6] On 30 May 2016, an email was sent by the Commission to both Ms Candy and Mr Kells referring to the settlement advice and enclosing a blank Notice of Discontinuance. No response was received from either Ms Candy or Mr Kells to this correspondence. [7] A further attempt to contact Ms Candy by telephone was made by the Commission on 2 June 2016 and a message was left asking that she contact the Commission. On 29 September 2016, another email was sent by the Commission to Ms Candy referring to settlement and again enclosing a Notice of Discontinuance form for filing. [8] On 3 October 2016, Ms Candy emailed the Commission and advised that she would confirm that Mr Kells had received settlement monies and then complete a Notice of Discontinuance accordingly. [9] As no further correspondence has been received from Ms Candy since the email of 3 October 2016, on 18 November 2016 the Commission sent a letter advising Mr Kells that he had until close of business on 28 November 2016 to file a Notice of Discontinuance. This correspondence further advised Mr Kells that if the Commission did not hear from him within this timeframe, his matter would be dismissed. [10] No response has been received from Ms Candy or Mr Kells to the correspondence from the Commission. [11] On 3 February 2017, my Associate contacted JBS and was advised that following agreement having been reached, the settlement monies had been paid to Mr Kells. Consideration [12] In Masters v Cameron, 1 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 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. [13] In all the circumstances of this matter, I am satisfied a binding agreement was reached that falls into either the first or second class of agreements identified in Masters v Cameron . The correspondence passing between the parties indicates the matter had been settled. Mr Kells’ representative Ms Candy advised the Commission on 9 May 2016 that a settlement agreement had been reached. On 10 May 2016, she advised JBS that Mr Kells was satisfied with the terms. Ms Candy’s email to the Commission on 3 October 2017 suggests the terms had been executed and she indicated she was going to provide confirmation that the settlement monies had been paid in accordance with them before filing a Notice of Discontinuance. When both she and Mr Kells failed to provide this confirmation despite numerous requests from the Commission, confirmation the settlement monies had been paid was received from JBS. [14] In Australia Postal Corporation v Gorman, 2 Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. 3 [15] His Honour stated: “[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3 - 2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, 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.” 4 [16] As can be seen from Australia Postal Corporation v Gorman , if there is a binding agreement between the parties, the Commission has the power to dismiss an application on the basis that it has no reasonable prospects of success. As I am satisfied that in the circumstances before me, there is a binding agreement between the parties which has extinguished the Application and there has been confirmation that JBS has paid the settlement monies, I consider it appropriate and open to me to exercise my power under s.587(1)(c) of the Act to dismiss the Application on the basis that it has no reasonable prospects of success. An order to this effect will be issued in conjunction with this decision. DEPUTY PRESIDENT 1 [1954] HCA 72 ; (1954) 91 CLR 353 at [360] - [361] . 2 [2011] FCA 975. 3 Ibid at [31]. 4 Ibid at [33]. Printed by authority of the Commonwealth Government Printer <Price code A, PR589274>