1
Fair Work Act 2009
s.394—Unfair dismissal
Craig Kramer
v
NSW Trains
(U2015/10983)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 NOVEMBER 2015
Application for relief from unfair dismissal.
[1] Mr Craig Kramer lodged an application alleging that his dismissal by NSW Trains on
28 July 2015 was unfair. The application was referred to conciliation on 8 September 2015.
[2] The matter did not settle and negotiations continued. On 11 September 2015, the legal
representatives for the parties discussed the terms of settlement and reached an agreement on
the terms of the settlement.1 It is not contested that the parties did not discuss when the
monies would be paid.
[3] That the parties had reached an agreement was communicated to the conciliator who
prepared the terms of settlement. A letter was sent to the parties by the conciliator on 14
September 2015 in which it was noted that the parties had reached an agreement and had
waived the cooling off period. The terms of settlement reflected the settlement terms agreed
to by the parties (aside from the date of payment). NSW Trains signed the terms of settlement
and forwarded a signed copy to Mr Kramer’s legal representative on the same day.
[4] On 15 September 2015, Mr Kramer wrote to Mr Thompson, the representative of
NSW Trains, saying:
“I received a [sic] email from Mr Madden regarding the settlement however I feel it’s
in my interest to wait for the responses from hopefully all the politicians either I or
family and friends have sent recently regarding my current situation I have attached a
copy of my email to the Transport Minister Mr Constance but similar ones were sent
to Mr Ryan Park, Shadow Transport Minister, Deputy Premier Mr Troy Grant and my
local member Mr Andrew Gee. I have had phone conversations with Mr Park and Mr
Grants offices and will be making a appointment to see Mr Gee as soon as possible.”2
1 Exhibit R1 at [18].
2 Exhibit R1, Annexure D.
[2015] FWC 7895
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 7895
2
[5] Mr Thompson forwarded that email to Mr Madden, Mr Kramer’s legal representative,
asking him what is going on and whether there was an agreement or not.
[6] Mr Kramer sent another email to Mr Thompson on the same day saying:
“Regarding the signing and accepting of the settlement document, which I have not
seen, I am not signing anything until I receive feedback and advice from the offices of
the members of parliament who have received emails from myself and other friends
and family and I would appreciate it if you respected my position and not demand my
solicitor finalise this. I was FINALLY contacted regarding returning of my keys and
uniform which I wonder would’ve occurred if I didn’t raise the issue?”3
[7] On 16 September 2015, Mr Thompson wrote to Mr Madden and stated that Mr
Kramer’s comments are completely at odds with the agreement that was negotiated by the
Fair Work Commission that week.
[8] On the same date, Mr Madden advised Mr Thompson that he would speak to his
client.
[9] On 17 September 2015, Mr Thompson wrote to Mr Madden asking how the matter
was to progress and on the same date, Mr Madden advised Mr Thompson that his client
wished the matter to be relisted before the Commission.
[10] On 18 September 2015, Mr Thompson wrote to Mr Madden and asked him to confirm
that the acceptance of the current agreement had been withdrawn.
[11] On 21 September 2015, for the first time, Mr Madden raised the issue of the 28 day
time period for the payment of the monies. He said:
“NSW Trains stipulation that Craig could not be paid for 28 days is the reason that he
did not agree to signing the Deed of Release. This condition was not specified prior to
when Craig agreed.
Since then I understand a number of other issues have come to light. I am
endeavouring to be instructed on those issues.”4
[12] On the same day, Mr Thompson replied and advised that in an attempt to resolve the
matter, they could process the payment within seven days.
[13] On 30 September 2015, Mr Madden advised that his client rejected the offer.
[14] On 23 October 2015, NSW Trains filed an objection to Mr Kramer’s application on
the basis that a settlement agreement had been reached and that as a consequence, Mr
Kramer’s claim had been extinguished and must be dismissed under section 587(1)(c) or
alternatively under section 399A(1)(c) of the Fair Work Act 2009 (the Act).
3 Exhibit R1, Annexure E.
4 Ibid.
[2015] FWC 7895
3
The authorities
[15] The decision of the Full Bench in Curtis v Darwin City Council5 which referred to the
decision of the Federal Court in Australian Postal Corporation v Gorman6 is authority for the
proposition that if there is a binding agreement between parties to an unfair dismissal
application, then the application has no reasonable prospects of success and may be
dismissed.
[16] In Australia Postal Corporation v Gorman7, Besanko J said as follows:
“An accord and satisfaction extinguishes the existing cause of action and replaces it
with a new cause of action based on the agreement. A valid accord and satisfaction is
not a discretionary factor relevant to the subsequent litigation of the original claim; it
is an answer to the claim.”8
[17] His Honour went on to say:
“a valid accord 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.”9
[18] Mr Madden submitted that there had been no agreement because an essential term,
namely when Mr Kramer would be paid, was not agreed between the parties.
[19] I do not accept this submission. The first reason is that Mr Kramer in his emails to Mr
Thompson advised that he did not want to settle his claim pending the results of his
communications with certain politicians. Mr Kramer had decided to walk away from the
agreement before he knew that the agreement provided for a 28 day payment. This was only
raised as an issue on 21 September 2015.
[20] I do not accept that the fact that the parties had not agreed on a date for payment meant
that there had been no agreement reached. I accept that in the absence of an express
agreement to a time for the payment, the parties agreed to the monies being paid within a
reasonable time and I do not consider 28 days to be unreasonable. Further, given NSW Trains
subsequent proposal that it would pay the monies within seven days, any suggestion that the
term was unreasonable is not sustainable.
[21] Senior Deputy President Kaufman in Australian Taxation Office v A. Zoiti-Licastro10
upheld a settlement agreement where the applicant submitted that there was no binding
5 [2012] FWAFB 8021.
6 [2011] FCA 975.
7 Ibid.
8 Ibid at [31].
9 Ibid at [33].
10 PR960411.
[2015] FWC 7895
4
agreement because there had been no agreement about mutual releases which had
subsequently been included in terms of settlement. That decision was upheld on appeal.11
[22] The Full Bench said:
“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.”12
[23] I find that there was an agreement reached between Mr Madden and Mr Thompson on
11 September 2015. Mr Thompson’s evidence to that effect was not challenged.13 That
agreement was reflected in the terms of settlement drawn up by the Commission. Mr
Thompson’s evidence that it was Mr Madden who told the conciliator that the matter was
settled was not challenged.14 Mr Madden did not give evidence at the hearing. I do not accept
that a failure to discuss a machinery term means that there was not an agreement.
[24] I find that there was a binding agreement reached between the parties and that Mr
Kramer’s application has no reasonable prospects of success. The power to dismiss an
application under section 587 of the Act is discretionary. Mr Kramer had not been paid the
monies payable under the terms of settlement nor has he been provided with a statement of
service.
[25] I am therefore not prepared to dismiss the application at this time. However, if NSW
Trains provides evidence that it has complied with its obligations under the agreement within
seven days of this decision, I will issue an order dismissing Mr Kramer’s application. If no
such evidence is provided, Mr Kramer’s application will be referred to hearing/conference for
determination.
DEPUTY PRESIDENT
11 A. Zoiti-Licastro v Australian Taxation Office PR967544.
12 Ibid at [12].
13 Exhibit R1 at [18].
14 Ibid.
FAIR WORK COMMISSION AUSTRALIA THESEAL OF
[2015] FWC 7895
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Appearances:
M Madden for the Applicant.
N Hill and A Woods for the Respondent.
Hearing details:
2015.
Telephone hearing:
November 6.
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Price code C, PR574022
