1
Fair Work Act 2009
s.394—Unfair dismissal
Leigh Priest
v
Albury Blue Logistics
(U2017/10946)
DEPUTY PRESIDENT CLANCY MELBOURNE, 5 JANUARY 2018
Application for an unfair dismissal remedy – whether rejection of conciliated settlement
agreement within cooling off period – no concluded settlement.
[1] On 11 October 2017, Mr Leigh Priest made an application for unfair dismissal remedy
in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] The application was referred to conciliation on Thursday 2 November 2017. At
conciliation, both Mr Priest and Albury Blue Logistics (ABL) were self-represented. In such
circumstances, the Fair Work Commission practice is to offer the parties a three business day
cooling off period in relation to any settlement reached by them at conciliation, unless they
agreed to it being waived.
[3] At the conciliation, the parties appeared to reach a settlement agreement. This was
confirmed in correspondence the conciliator sent to them on 2 November 2017, after the
conciliation, which stated:
“I confirm that you reached a settlement agreement and I attach terms of settlement. As
discussed, a three day cooling off period now applies. I will hold the file for three
business days to allow you (the parties) time to consider the agreement reached at
conciliation. Unless I hear from either of you in writing by the close of business on
Wednesday 7 November 2017 (sic) I will assume the matter is resolved in the terms
attached and I will close the file accordingly. If one of the parties does not want to
proceed with the settlement and advises me during the cooling off period, I will refer
the matter for arbitration before a Member of the Commission.” (emphasis in
original)
[4] On Friday 3 November 2017 at 3:19pm, Mr Priest emailed the conciliator and stated
the following in relation to the settlement agreement reached:
“This is not a reasonable outcome as it is only for the entitlements which legally need to
be paid to me. Pending a further offer or negotiation I would like to proceed to the
commission.”
[2018] FWC 105
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 105
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[5] Subsequently, the Fair Work Commission (Commission) file records the conciliator
emailing Mr Priest in reply at 3:38pm on the same day, confirming receipt of his email and
advising that an unsuccessful attempt had been made to contact him via telephone. This email
also requested that Mr Priest return the conciliator’s telephone call in order to discuss “what
‘further offer’ [he] may be asking the Respondent to make”. The conciliator then advised Mr
Priest she would be available until 4:45pm that day but would otherwise not be available to be
contacted again until Thursday 9 November 2017.
[6] As ABL was not initially copied in on the correspondence from Mr Priest, it was
forwarded this by the conciliator at 4:15pm on 3 November 2017. This email also copied in
Mr Priest and in it, the conciliator advised ABL that she had attempted to telephone Mr Priest
to clarify his correspondence and would advise if she heard back from him that day. Finally,
the conciliator referred to the correspondence sent on 2 November 2017 and that part of it
explaining what would happen if one of the parties advised within the cooling off period that
it did not want to proceed with the settlement. The conciliator also advised ABL that it might
be possible the matter would be referred for hearing, stating “in which case I will contact the
parties when I return to the office next Thursday and seek their instructions regarding future
processing preferences”.
[7] ABL replied to the conciliator at 4:40pm on the following Wednesday, 8 November
2017. It included in its email a counter offer outlining revised settlement terms it had received
from Mr Priest on Monday 6 November 2017. In this email ABL expressed that it was
confused as to the situation due to its uncertainty over what Mr Priest intended to do next.
ABL advised that it had signed the terms of settlement document sent to parties following
conciliation and attached a copy.
[8] In a telephone conversation with the conciliator on Thursday 9 November 2017, ABL
advised that it had replied to Mr Priest’s email and had requested clarification as to how he
had calculated the amounts contained in the counter offer. ABL further advised it received a
reduced counter offer from Mr Priest in reply but had not yet responded to it.
[9] The conciliator subsequently emailed Mr Priest at 1:59pm on Friday 10 November
2017, stating:
“Dear Leigh
I have tried unsuccessfully to call you today.
Can you please advise me whether you have agreed to the terms of settlement reached
at conciliation on Thursday 2 November 2017 or whether you are going to withdraw
from the agreement.
If you have decided to withdraw from the agreement I will automatically refer the
matter on to arbitration.
If you have any queries please call me. Otherwise I await your written response.”
[10] Not having received a reply from Mr Priest to this earlier correspondence, at 4:25pm
on 10 November 2017, the conciliator emailed again and stated:
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“Dear Leigh
As you have:
• not contacted me since Friday 3 November 2017,
• not answered or returned any of my calls
• not responded to my emails (from earlier today or the email sent @4:15 pm on
Friday 3 November) I will now close the file.
The cooling off period that applied to the agreement ended at COB Wednesday 8
November 2017.”
[11] ABL was copied in on this correspondence sent by the conciliator. Subsequently, at
8:35pm on Friday 10 November 2017, Mr Priest sent the following response to the
conciliator:
“I have not agreed, and would like to proceed to arbitration.
I contacted the respondent and am awaiting their response
Thank you for your time…”
[12] On Monday 13 November 2017, the Commission made contact with Mr Priest via
telephone. When Mr Priest expressed his intention to proceed to arbitration, he was asked to
outline his reasons in writing so that his request could be considered.
[13] Mr Priest sent an email at 4:30pm that day which stated the following:
“I had expressed my wishes to proceed the day after my conciliation conference with
Jill Gates. Who notified me she would be away until Thursday 9/11. I did not have any
contact from Jill on this day and was under the impression as per her email after
drafting the conciliation that I would have no further contact with her. During this
time I was in contact with the respondent with a view to reach a resolution, and I
requested they notify me if they were in agreement. We did not reach an agreement
and as per my request to Jill and I thought the matter would just proceed further.
I had communication difficulties in response to speaking with Jill on Friday 10/11
when she had tried to contact me in the afternoon. I was involved with housework and
did on occasions check my phone. I replied via email reconfirming that I would like to
proceed to arbitration. As per her final email outlining her efforts to contact me and
that my 'file' would be closed. This to me was a confirmation as per her email after the
conciliation draft that she would no longer be involved. It was never my intention to
have my 'case' closed, she must have somehow gathered a different understanding.”
[14] Consequently, on 20 November 2017 the Commission sent correspondence to the
parties regarding Mr Priest’s request to proceed with his application. It advised that the matter
had been referred to Commissioner Bissett, acting Panel Head – Termination of Employment,
and stated:
“Our records show that this matter was settled at a conciliation conducted by the
Commission on 2 November 2017. An email to that effect was provided to the parties
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on the same day. In light of this, the Commissioner is considering whether she should,
of her own motion, dismiss Mr Priest’s application under s.587 of the Fair Work Act
2009 because it has no reasonable prospects of success.”
[15] This correspondence advised Mr Priest that prior to a decision being made as to
whether his application would be dismissed, he was directed to file and serve evidence as to
why his application should not be dismissed by close of business on Monday 4 December
2017.
Submissions of Mr Priest
[16] Mr Priest provided his submissions on 28 November 2017, outlining that at the
conciliation on 2 November 2017 he was advised by the conciliator that a cooling off period
would apply to any settlement reached by the parties. Mr Priest submitted this advice was
confirmed in an email subsequently sent by the conciliator which advised the relevant cooling
off period would expire at close of business on Wednesday 8 November 2017.
[17] Mr Priest contended that after he later realised that the amount offered by ABL to
settle the matter was not reasonable, he notified the conciliator the following day that he did
not agree to it. In this regard, Mr Priest sought to rely on the email he sent to the conciliator at
3:19pm (referred to at [4] above), asserting “I was clear in my communication that I was not
happy with the settlement and wanted to proceed to the next formal step”.
[18] Mr Priest further submitted that after sending this email to the conciliator, he did not
receive an immediate reply but only an automated response from the Commission. Mr Priest
contended he then received an email from the conciliator one week later on Friday 10
November 2017, asking whether he had agreed to the terms of settlement proposed at
conciliation, or wished to withdraw from the agreement.
[19] Mr Priest said he sent an email in reply on 10 November 2017, in which he stated that
he confirmed again that he did not agree. Mr Priest confirmed he wants his application to
proceed to arbitration.
Submissions of ABL
[20] The Commission subsequently sent correspondence to ABL on 1 December 2017,
directing it to file and serve submissions and evidence by close of business on Friday 15
December 2017 as to why Mr Priest’s application should be dismissed because it has no
reasonable prospects of success, on the basis that it had settled at conciliation.
[21] ABL provided its submissions on 15 December 2017, largely addressing its contention
that Mr Priest had not been dismissed and remained an employee at the time of the
conciliation. ABL asserted that it agreed to a proposed settlement with Mr Priest at the
conciliation due to his indication that he wished to resign his employment with ABL. It was
submitted by ABL that as part of the settlement negotiation, it agreed to Mr Priest’s request to
receive four weeks’ pay in lieu of notice plus his accrued entitlements and supervisor
allowance.
[22] ABL submitted that despite Mr Priest agreeing to this on the day of conciliation, a day
later, he advised the conciliator he did not consider that the terms were acceptable and
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provided ABL with a counter offer via email on 6 November 2017, outlining revised
settlement terms of “9 weeks, 14 weeks leave to include leave loading and 4 weeks in lieu of
notice”.
[23] ABL confirmed it signed the terms of settlement document prepared by the
Commission and these were sent via email to the conciliator on Wednesday 8 November
2017. ABL further submitted that it replied to Mr Priest’s email on 8 November 2017 and
asked him to clarify its terms, in particular how he calculated the 9 week component. It added
that Mr Priest had responded to this query via email on Thursday 9 November 2017 by
stating:
“To justify/clarify, the terms are for settlement prior to proceeding further and outline
the amounts payable subject to tax.
I am willing to negotiate on 9 weeks, down to 7 weeks. With a view towards resolution.
My resignation is a remedy regarding my claim for unfair dismissal ?
If we can not reach an agreement I will see you at arbitration (sic).”
[24] ABL submitted Mr Priest’s submissions filed 28 November 2017 did not provide “any
solid evidence as to why [his] application should proceed” and consequently made a request
that the matter be closed and not proceed further.
Reply from Mr Priest
[25] Following receipt of ABL’s submissions on 15 December 2017, Mr Priest sent an
email to the Commission on 18 December 2017 in which he objected to assertions made by
ABL. The basis of Mr Priest’s objection was that certain submissions of ABL concerned the
merits of his application and did not address the issue of whether or not there was a binding
settlement agreement reached by the parties.
[26] Rather, Mr Priest submitted that there appeared to be no dispute between the parties
that a settlement agreement was reached at conciliation and that he notified the conciliator of
his desire to not be bound by this agreement within the 3 business day cooling off period. In
this regard, Mr Priest contended that he was entitled to rely upon the cooling off period in
relation to the agreement reached at conciliation, as he had been advised by the conciliator on
2 November 2017 of its application.
Further submission of ABL
[27] ABL replied to the email from Mr Priest on 18 December 2017 at 10:49am and
requested further time in which it could consider the additional submissions. The Commission
emailed the parties and directed ABL to provide any submissions by close of business. ABL
complied and submitted:
“Albury Blue Logistics participated in the conciliation process in good faith and
negotiated a settlement at the request of the Applicant.
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The question is when does the settlement terms become binding. Jill Gates felt the
appropriate outcome was to close the matter based on information that was presented.
I have nothing further to add at this time.”
Consideration
[28] The three business day cooling off period the Commission offers was available in this
matter as both parties at conciliation were self-represented. It was offered and neither party
elected to waive it. The cooling off period expired on Wednesday 8 November 2017. Neither
the Act nor the Fair Work Regulations 2009 prescribe a process for withdrawing from a
conciliated settlement agreement during a cooling off period.
[29] The central issue for me to determine is whether a binding settlement agreement has
been reached between Mr Priest and ABL.
[30] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant
principles concerning intention to create legal relations in Pavlovic v Universal Music
Australia Pty Limited1 in the following way:
“It is well established that the question of whether the parties intended to bind
themselves to a contract is to be determined objectively, having regard to the intention
disclosed by the language the parties have employed: Masters v Cameron [1954] HCA
72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the
construction of a single document, what is involved is the objective determination of
the question from the communications between the parties in their context and the
parties’ dealings over the time leading up to the making of the alleged contract. This
involves consideration of the subject matter of the communications: Australian
Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS
Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what
the parties said or wrote (at 334, 337).”
[31] Whether there was a legally binding settlement reached between Mr Priest and ABL
involves interpretation of the written correspondence within the 3 business day cooling off
period, following the conciliation on 2 November 2017.
[32] In Singh v Sydney Trains2, the Full Bench of the Commission outlined the relevant
principles for offer and acceptance:
“[48] An offer and acceptance must precisely correspond. The following principles are
relevant to this requirement:
An acceptance corresponds to an offer if it is an unequivocal acceptance of
the terms offered.
An acceptance is not an unequivocal acceptance of the terms offered if it
deviates from the offer, even if that deviation is not material or important.
However, as a qualification to this principle, if a new term is included in a
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purported acceptance of an offer and the new term is solely for the benefit of
the offeror, then this can constitute a valid acceptance.
An acceptance will be effective if it does not depart from the terms of the
offer, but simply repeats in the offeree’s own words the effect of the offer.
Acceptance will be effective if it sets out expressly what would be implied by
law in the absence of express agreement. For example, an offer may
contemplate that, were it to be accepted, a document would be prepared to
record its terms. In proposing that a deed be prepared as part of an acceptance
of such an offer, the offeree would be stating that which would be implied by
law arising from the terms of the offer, namely, that it would be documented
in some formal manner.
Similarly, if a purported acceptance of an offer merely includes the
“machinery of working out what was meant by the offer, it is on the same
plight as a request for information”. Such a request for information does not
revoke the offer and may constitute acceptance of the offer.” (references
omitted)
[33] The email sent by Mr Priest to the conciliator on Friday 3 November 2017 was sent in
response to the conciliator’s email attaching the settlement agreement. It was sent by him
within the cooling off period and, as outlined above, it stated:
“This is not a reasonable outcome as it is only for the entitlements which legally need to
be paid to me. Pending a further offer or negotiation I would like to proceed to the
commission.”
[34] Mr Priest then sent an email to ABL on Monday 6 November 2017, again within the
cooling off period, containing a counter offer of “9 weeks, 14 weeks leave to include leave
loading and 4 weeks in lieu of notice”.
[35] It is clear those emails constituted a rejection of the settlement agreement reached at the
conciliation on 2 November 2017. Mr Priest had considered the settlement agreement reached at the
conciliation and he did not unequivocally accept it. Within the period allowed, he conveyed this and
both the conciliator and ABL became aware of his position. In its submissions dated 15 December
2017, ABL appears to accept that Mr Priest advised the conciliator that the settlement terms were not
acceptable on the day after the conciliation conference.
Conclusion
[36] I am satisfied Mr Priest did not accept the conciliated settlement agreement within the
three business day cooling off period made available to the parties and this was
communicated to the conciliator and ABL. Therefore, I am not satisfied there are binding
terms of settlement and I decline to dismiss Mr Priest’s unfair dismissal application pursuant
to s.587 of the Act.
[37] The application will now be referred for further directions so that its merits can be
heard and determined. In this regard, it is noted that ABL appears to have raised the
jurisdictional objection that Mr Priest was not dismissed from his employment within the
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meaning of s.386 of the Act. If this jurisdictional objection is maintained by ABL, it can be
pressed at the hearing of the merits of the application and the directions will need to
accommodate this.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR599306
1 [2015] NSWCA 313 at [15].
2 [2017] FWCFB 4562.
THE FAIR WOR COMMISSION THE SEAL
