1
Fair Work Act 2009
s.394—Unfair dismissal
Jarrett Dean Mattner
v
Designer Gardens Pty Ltd T/A Trendscape Landscape Professionals
(U2022/11793)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 21 MARCH 2023
Application for an unfair dismissal remedy – small business – landscaper – jurisdiction –
whether binding settlement agreement – binding settlement agreement existed – no utility in
determining remaining issues – direction to confer on implementing settlement agreement
[1] On 13 December 2022 Jarrett Dean Mattner (the applicant or Mr Mattner) applied to the
Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal
remedy.
[2] The respondent is his former employer Designer Gardens Pty Ltd trading as Trendscape
Landscape Professionals (Trendscape, the employer or the respondent).1
[3] Mr Mattner claims he was dismissed by forced resignation and that his dismissal was
harsh, unjust or unreasonable.
[4] An employer response was due on 23 December 2022. No response was filed. It was
not until I issued a direction on 7 February 2023 that on 15 February 2023 the employer filed a
response.
[5] Trendscape is a small business within the meaning of the FW Act. It opposes the
application. It raises a jurisdictional issue. It contends there was no dismissal. It says Mr Mattner
resigned and that his resignation was not forced.
[6] In the alternative, Trendscape submit that if Mr Mattner was dismissed then the
application should be dismissed as the employer complied with the Small Business Fair
Dismissal Code (Code) and, in the further alternative, that the dismissal was not otherwise
unfair. It opposes an order by way of remedy.
Background
[7] Conciliation was conducted on 11 January 2023 (notwithstanding that no employer
response had, by then, been filed). I deal with the outcome of conciliation below.
[2023] FWC 633
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 633
2
[8] On 30 January 2023 Mr Mattner sought to have his application ‘re-opened’ in light of
the employer not having communicated about or given effect to settlement terms.
[9] A directions hearing was listed for 2 February 2023 by the Commission’s Unfair
Dismissal National Practice Lead (Bissett C). The employer did not appear but had earlier sent
an email (31 January 2023) also seeking a re-opening.
[10] The application was referred to me for further case management and determination, as
appropriate.
[11] I conducted a directions hearing on 17 February 2023. Mr Mattner sought that the
application be ‘listed for hearing’. Trendscape did not oppose that course.
[12] Directions were issued on 17 February 2023.
[13] Materials on all issues were submitted by Mr Mattner and by Trendscape.
[14] I heard all matters in issue by video on 14 March 2023. This included whether a binding
settlement agreement existed, the jurisdictional issue raised by the employer (no dismissal),
merits and remedy.
[15] I conducted the hearing by video as a determinative conference, with both Mr Mattner
and Mr Scarpantoni giving evidence in parallel on identified subject matters and with each
being provided a measure of assistance in presenting their case and testing that of the other side.
[16] I heard evidence from three persons:
• Jarrett Mattner (applicant), on two statements filed in his name;2
• Nikole Cornish (Mr Mattner’s wife), on one statement filed in her name;3 and
• Valentino Scarpantoni (owner of respondent business), on two statements filed in his
name.4
Was there a binding settlement agreement?
[17] The first question I need to consider is whether a binding settlement agreement exists
between the parties.
[18] I raised this issue on 17 February 2023 and again with the parties prior to and at the
hearing on 14 March 2023. Each made reference to this issue in witness statements and in oral
evidence.5
[19] I did so, notwithstanding that, at the directions hearing on 17 February 2023, I listed all
matters for determination. In listing this matter, I considered that receiving one body of
evidence from both sides on all issues was the most efficient course. I note that it was not until
after the matter had been allocated to me that all relevant communication from the conciliator
on the settlement issue was uploaded to the Commission’s electronic record keeping system.
[2023] FWC 633
3
Those same documents were emailed to the parties prior to the hearing.6 They appear as
attachments to materials filed by the parties and were admitted into evidence.7
[20] If a binding settlement agreement exists then, on well-established Commission
authority, that agreement represents the complete answer to the application rendering further
determination of no utility.8
[21] Mr Mattner submits that a binding settlement agreement was reached on 11 January
2023 but that Trendscape failed to sign the settlement deed or give effect to its terms.
[22] Trendscape submit that the settlement agreement was subject to checking calculations
of the quantum to be paid to Mr Mattner, that the quantum was then twice changed by Mr
Mattner after 11 January 2023 and that historical information about Mr Mattner’s alleged
conduct whilst employed came to light in the fortnight after the agreement was made and that
this rendered it inappropriate to give effect to the settlement terms.
Facts
[23] I make the following findings relevant to this question.
[24] Mr Mattner resigned from employment by email on 7 December 2022.9 He gave four
weeks’ notice with resignation to take effect on 4 January 2023.
[25] Mr Mattner remained employed during the four week period but Trendscape did not
require him to perform work. He remained at home and submitted weekly time sheets for
payroll purposes. Trendscape paid Mr Mattner through its regular payroll system up to and
including 1 January 2023 (but not for the final three days 2, 3 and 4 January 2023).
[26] After taking advice from the Fair Work Ombudsman, Mr Mattner filed an unfair
dismissal claim on 13 December 2022.
[27] On 6 January 2023, prior to conciliation, Mr Mattner sent Trendscape an email setting
out calculations of sums he believed were due and stating that he “hoped that we can resolve
this matter so that we have no need to proceed further with the meeting”.10
[28] Mr Mattner did not hear back from Mr Scarpantoni who had, until shortly prior, been
on leave.
[29] A conciliation conference was conducted by a staff conciliator on 11 January 2023. Mr
Mattner and Mr Scarpantoni attended. It was a private conference and no official record (audio
or otherwise) was taken.
[30] At the conclusion of the conference Terms of Settlement were read out by the
conciliator. They were acknowledged by both parties. The terms included payment of a
settlement sum to Mr Mattner of $22,184.70 (less tax). The settlement sum had been calculated
as representing statutory entitlements (including long service leave and accrued annual leave
plus leave loading) said to be owed to Mr Mattner and not yet paid.
[2023] FWC 633
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[31] The terms included payment of the settlement sum, provision of a statement of service,
a mutual release and discharge, mutual confidentiality and mutual non-disparagement.
[32] When the settlement amount was read out and acknowledged, Mr Mattner and Mr
Scarpantoni agreed to the quantum subject to the calculations being double-checked.11
[33] A cooling off period was not provided for in the settlement terms.
[34] On 14 January 2023 the conciliator sent Mr Mattner an email:12
“Dear Jarrett
Thank you for your recent participation in conciliation.
Prior to issuing your settlement letter and Terms of Settlement, can you please re-
confirm via reply email, that the correct financial compensation sought is $22,184.70,
thank you.
The breakdown captured during conciliation includes:
1. Pro rata of 11.7 weeks: $15,444-
2. Annual leave: $3,564-
3. Loading: $623.70
4. Sick leave of 17 hrs: $561-
Subtotal: $20,192.70
Plus
1. AL /14 loading $420-
2. AL /15 $630-
3. AL 16/17 $798-
4. AL 19/20 $144-
Subtotal: $1,992-
Total: $22,184.70-
Just as soon as I hear from you, I will forward the breakdown to the Respondent.
Kind regards
[2023] FWC 633
5
[name redacted]
Conciliator”
[35] Mr Mattner replied that evening (14 January 2023):13
“Good evening [name redacted]
Below is a copy of an email I sent Valentino on Friday January 6, 2023 explaining the
break down of all costs as discussed during our conciliation call.
However in addition to these amounts, the final 3 days of my 4 weeks notice of
resignation in lieu has not been paid as of yet and is an additional 3 days of 8 hours @
$33/hour = $792
Therefore making the total $23,696.70
…”
[36] On 15 January 2023 the conciliator sent an email to both parties:
“Dear Parties
Please refer to the attachments for a copy of your settlement letter and Terms of
Settlement agreement.
If the payment amount has changed following settlement at conciliation, and the
Respondent agrees to pay the (higher) revised amount, please amend the original amount
under your Terms of Settlement accordingly and both sign. Once signed, you are
required to email your signed copy to the other party. There is no requirement to copy
the Fair Work into your emails.
Once all terms have been satisfied, the Applicant can then take steps to officially
discontinue the application.
This finalises my role in the matter. Thank you again and all the best.
Kind regards”
[37] The attachments included a letter to each of Mr Mattner and Trendscape dated 11
January 2023 in the following terms:
“Thank you for your recent participation in conciliation. I confirm that you reached a
settlement agreement.
As this is an agreement reached between the parties, you must send your signed terms
to the other party. Do not send a copy to the Commission as we do not keep any record
of your agreement. You should however keep a signed copy of the agreement for your
records. Any resignation or statement of service (if applicable) should be sent directly
to the relevant party, not to the Commission.
[2023] FWC 633
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Upon satisfaction of the terms, the Applicant will need to file a Notice of discontinuance
(Form F50) with the Commission, with a copy sent to the Respondent. Generally, any
correspondence or documents sent to the Commission must also be sent to the other
party. The Commission may forward your correspondence and documents to the other
party. If you are concerned about correspondence or a document being forwarded by the
Commission, you should contact the Commission before sending it.
This concludes my role in the process. If any queries arise about implementing the terms
of settlement, please contact the other party directly. Thank you.”
[38] The Settlement Agreement attached for signature was as follows:14
“In the matter of
Jarrett Dean Mattner
(Applicant)
and
Trendscape Landscape Professionals
(Respondent)
Background
1. The Applicant has applied to the Fair Work Commission in case number
U2022/11793 alleging the Applicant was protected from unfair dismissal and was
unfairly dismissed by the Respondent.
2. The Respondent denies the allegations.
3. The Applicant and the Respondent agree to fully settle the matter on these terms:
Payment
4. In addition to any money the Respondent has previously paid to the Applicant, the
Respondent will pay to the Applicant $22,184.70. The Respondent will deduct tax
from this amount in accordance with applicable law.
5. The Respondent will pay this amount to the Applicant within 7 calendar days of the
Applicant and the Respondent signing this agreement.
6. The Respondent will pay this amount by electronic funds transfer to the Applicant’s
nominated account on file.
Statement of Service
7. Within 7 calendar days of the Applicant and the Respondent signing this agreement,
the Respondent will give the Applicant a Statement of Service stating on letterhead:
https://www.fwc.gov.au/form/notice-discontinuance-form-f50
https://www.fwc.gov.au/form/notice-discontinuance-form-f50
[2023] FWC 633
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• the Applicant’s position and duties with the Respondent
• the Applicant’s period of service with the Respondent
Discontinuance
8. When the Respondent has complied with clauses 4 to 7, the Applicant will
discontinue the application.
Release
9. On the Respondent complying with clauses 4 and 7, the Applicant releases and
discharges the Respondent and its directors, officers and employees from all claims,
actions and liability:
• to which the Respondent may now be subject, or to which the Respondent may,
but for this agreement, have become subject in the future, and
• that relate to the Applicant’s employment by the Respondent or the termination
of that employment.
10. The Respondent releases and discharges the Applicant from all claims, actions and
liability:
• to which the Applicant may now be subject, or to which the Applicant may,
but for this agreement, have become subject in the future, and
• that relate to the Applicant’s employment by the Respondent or the termination
of that employment.
11. Despite clause 9, this agreement does not affect any claims or actions the Applicant
may have at any time:
• under workers’ compensation legislation or common law for a work-related
injury, illness, disease or death, or
• for unpaid superannuation guarantee contributions.
Confidentiality of this agreement
12. The Applicant and the Respondent will not disclose the terms of this agreement to
anyone other than:
• to disclose it confidentially to their legal or financial advisers, or
• to enforce the terms of this agreement, or
[2023] FWC 633
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• as required by law.
No disparagement
13. The Applicant will not make disparaging comments about the Respondent or any of
its directors, officers or employees.
14. The Respondent will not make disparaging comments about the Applicant and will
ensure that its directors, officers and employees do not make disparaging comments
about the Applicant.
Signing
15. This document may be executed in counterparts. This means that the signing is
complete when the Applicant has a copy of this document signed by the Respondent
and the Respondent has a copy of this document signed by the Applicant even
though the signatures of both do not appear on the same copy.
…”
[39] The conciliator’s email and attachments were received by Mr Mattner and Trendscape
on 15 January 2023.
[40] Following receipt, Mr Mattner recalculated the settlement sum. He did so because it had
been agreed that the quantum was to be double-checked and he had done so at the conciliator’s
request the day prior. Mr Mattner altered the quantum on the deed to $22,976.70 so as to include
the three days of wages owing, and sent Trendscape the amended deed.15
[41] On 18 January 2023 Trendscape (via Mr Scarpantoni’s administrative officer) emailed
Mr Mattner advising that accrued sick leave is not paid out on termination (a sum which had
been included in the initial deed), and asking for information about what day Mr Mattner had
used as the termination date.16
[42] By return email, Mr Mattner agreed that sick leave should not have been included. He
altered the quantum on the deed to $22,415.70 by removing that sum (but retaining the
additional sum for three days of unpaid wages). Mr Mattner signed the further amended deed
and sent it to Trendscape for their signature.17
[43] The Commission was not copied into these email communications between Mr Mattner
and Trendscape between 15 and 18 January 2023 as the conciliator’s correspondence had
indicated that this was not required.
[44] After sending the signed amended deed to Trendscape at 4.51pm on 18 January 2023,
Mr Mattner received no response.
[45] Trendscape did not sign the deed. Not having signed the deed, Trendscape did not pay
Mr Mattner the settlement sum within seven days (as provided for in the deed) or at all.
[2023] FWC 633
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[46] Mr Scarpantoni’s administrative officer drew the deed as sent and signed by Mr Mattner
on 18 January 2023 to his attention. Before signing, Mr Scarpantoni decided to further
investigate Mr Mattner’s conduct whilst employed. Over the following week he formed the
view that Mr Mattner had been conducting a private gardening business on weekends contrary
to employment obligations, had tried to recruit a Trendscape employee to work in that business,
had been putting private expenses on a Trendscape account and had been excessively using fuel
and internet data on a work supplied vehicle and phone.
[47] Aside from the fuel usage, none of these issues had been put to Mr Mattner. At the
hearing, Mr Mattner provided a response to each of these issues. I mention them not as findings
of fact but to contextualise the sequence of events.
[48] On 25 January 2023, fourteen days after the conciliation and not having heard from
Trendscape or received the settlement sum, Mr Mattner wrote to the Commission advising of
the events since conciliation and that the settlement had not been given effect to.
[49] On 27 January 2023 Mr Mattner was informed by a Commission case manager that “if
the respondent has failed to meet the settlement, you can request to re-open your case”.18
[50] On 29 January 2023 Mr Mattner again wrote to the Commission seeking assistance,
repeating the contents of his 25 January 2023 email.
[51] On 30 January 2023 a Commission case manager asked Mr Mattner to “confirm if both
parties have signed the terms of settlement and if your (sic) requesting for the matter to be re-
opened”. This email was copied to Trendscape.19
[52] On 30 January 2023 Mr Mattner replied:
“I have signed the terms of agreement and emailed to the Respondent on January 15,
2023. I received an email on January 18 regarding sick leave not paid out. I therefore
adjusted the figure removing sick leave and emailed it on January 22, 2023 and have
received nothing back. The respondent has failed to sign the terms of settlement. I am
requesting this matter be re-opened please.”
[53] On 31 January 2023 Trendscape replied. The administrative officer, on behalf of Mr
Scarpantoni, advised the Commission (copied to Mr Mattner) as follows:20
“Questions remain unanswered regarding resignation/termination, anomalies on the fuel
card where the resignation originated, and moonlighting on weekends using company
assets to carry out extraordinary work outside of Trendscape business without prior
approval. Furthermore, this extraneous activity adversely affected Trendscapes business.
Weekends are provided to employees to rest so they can have work-life balance and
fresh for the week ahead etc.
Val would like to reopen the case in light of evidence that has come to light through the
examination of historical records.
Regards,
[2023] FWC 633
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XXXX”
Findings
[54] Was there a binding settlement agreement?
[55] This is a question of fact. It matters not that Mr Mattner or Trendscape may, for different
reasons, have had second thoughts about an earlier settlement (if one had occurred) or its terms.
[56] Leading cases of Masters v Cameron,21 Baulkham Hills Private Hospital v C R
Securities22 and Singh v Sydney Trains23 set out well established principles for determining this
question.
[57] A binding settlement agreement exists where there is an offer and acceptance which
precisely correspond and where communications between the parties and their conduct
expresses, objectively, an intention to make a concluded bargain.24
[58] Conduct of the parties after the making of the supposed agreement is relevant. Such
conduct may be considered in order to determine whether the prior dealings between the parties
gave rise to a binding contract.25
[59] As noted by a full bench of the Commission in Singh v Sydney Trains:26
“[53] If parties who have been in negotiations reach agreement on terms of a contractual
nature and also agree that those terms will be dealt with by subsequent formal
documentation, there are several categories into which such negotiations fall. First, the
parties reach finality, intend to be immediately bound, and propose restatement of the
terms of settlement in a fuller or more precise form but not different in effect. Secondly,
the parties have completely agreed all terms but performance of one or more terms is
conditional on execution of a formal document. Thirdly, the parties did not intend to
make a concluded bargain at all, unless and until they execute a formal contract.
Fourthly, the parties intended to be bound immediately and exclusively by agreed terms
while expecting to make a further contract in substitution containing, by concept,
additional terms.
[54] When parties do reach an agreement of the first or fourth category referred to in
Masters v Cameron and Baulkham Hills, they will be bound by the terms of their
bargain, notwithstanding a later disagreement between the parties about the terms to be
included in a deed or written agreement between them.”
[60] That both Mr Mattner and Trendscape agreed before the conciliator to a settlement on
terms outlined at the time by the conciliator and subsequently sent to them in writing, is
objective evidence weighing strongly in favour of a finding that a binding settlement agreement
was reached on 11 January 2023.
[61] With one caveat, the conciliator’s correspondence of 11 January 2023 and sent on 15
January 2023 (with covering email) supports such a conclusion. The letters sent by the
[2023] FWC 633
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conciliator dated 11 January 2023 advise that “you reached a “settlement agreement”. The deed
is referred to as the “Terms of Settlement”. The covering email refers to “your settlement letter”.
[62] With one caveat, the conduct of the parties following the conciliation also points in this
direction.
[63] Mr Mattner signed the settlement deed on or about 18 January 2023 and sent it to
Trendscape for signing, as requested by the conciliator.
[64] For fifteen days between 15 and 31 January 2023 Trendscape had possession of the
conciliator’s correspondence and the deed yet did not advise Mr Mattner nor the Commission
that the deed as sent by the conciliator was unacceptable or did not represent their agreement.
As had been agreed, Trendscape communicated with Mr Mattner after checking the quantum
calculated. Only on 31 January 2023 did Trendscape object because of “evidence that has come
to light through the examination of historical records”. That is, an examination of historical
records by Mr Scarpantoni following the conciliation.
[65] The concept of ‘buyer’s remorse’ can play no role in answering whether a settlement
agreement existed. Trendscape’s email to the Commission on 31 January 2023 is replete with
such considerations. Mr Scarpantoni accepted in evidence that he did not sign the deed or make
payment because of the belief he formed in the fortnight following conciliation about past
conduct in the context of having to defend a claim of unfair dismissal:27
DEPUTY PRESIDENT: “Is it right to say between 22 January…and 31 January…that
you had uncovered what you considered to be a range of historical matters and you no
longer believed it was appropriate to settle the matter?”
MR SCARPANTONI: “Yes”
DEPUTY PRESIDENT: “So to the extent that there was an agreement subject to
recalculation, you didn’t believe it was appropriate to proceed with that agreement?”
MR SCARPANTONI: “Yes. I didn’t believe it was appropriate.”
[66] Even had Mr Scarpantoni not acknowledged this in his oral evidence, I would have
made a finding to that effect as the inference from Trendscape’s silence between 11 and 31
January 2023 together with the contents of its email of 31 January 2023 is irresistible to that
effect. Trendscape’s refusal to sign the deed and implement the settlement was not the product
of double checking the calculations over quantum or that it did not owe Mr Mattner his statutory
entitlements. It was because Mr Scarpantoni came to consider Mr Mattner as undeserving in
light of new information he had obtained.
[67] However, a caveat exists. A private negotiation over quantum of the settlement sum
occurred between the parties in the week after the conciliation and before Mr Mattner signed
the deed. Mr Mattner made two variations to the settlement sum.
[68] Was this a continuation of an earlier and continuing but incomplete negotiation? I think
not.
[2023] FWC 633
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[69] The context surrounding this negotiation is relevant. It was not unexpected. It was the
product of both sides double checking the settlement sum. Doing so was contemplated at the
time the settlement agreement was reached. It was not a private frolic of the parties or one of
them. The conciliator’s covering email attaching the settlement terms of 15 January 2023 stated:
“If the payment amount has changed following settlement at conciliation, and the
Respondent agrees to pay the (higher) revised amount, please amend the original amount
under your Terms of Settlement accordingly and both sign.”
[70] It is apparent from the above that revisions to the quantum of the settlement sum were
contemplated at least by the conciliator and that if a higher amount was agreed between the
parties, then that higher amount would be substituted for the quantum set out in the deed and
which had been agreed at the conciliation. Through their exchange of emails on 14 and 18
January 2023 that calculation gave rise to one claimed addition and one agreed subtraction.
[71] It is in this context that Mr Mattner’s variations to the settlement deed must be viewed.
[72] I take into account that the statement made by the conciliator in the email of 15 January
2023 to the effect that the quantum could be further negotiated is not objective evidence of a
bargain between the parties to that effect.
[73] However, the fact that it was stated contextualises the discussion over quantum that
occurred between the parties between 15 and 18 January 2023.
[74] The evidence of Mr Scarpantoni was clear as to his understanding at the conclusion of
the 11 January 2023 conciliation:28
MR SCARPANTONI: “…I said look whatever I owe Mr Mattner I will pay Mr Mattner
but my bookkeeper does not return until next week and if I could get her to sort of check
his calculation by all means we will just finalise this and we can both move on.”
…
DEPUTY PRESIDENT: “So, from your perspective at least, was there an agreement to
make that payment to Mr Mattner subject to the amounts being checked?”
MR SCARPANTIONI: “Yes”.
[75] This remained Mr Scarpantoni’s position four days later when he was sent the deed by
the conciliator on 15 January 2023:29
MR SCARPANTONI: “…I gave it to [my bookkeeper] to check the final amount and if
the final amount correlated with what Mr Mattner had then we would finalise the amount
and I would sign the documentation, I would agree and that would be the end of the
matter.”
[2023] FWC 633
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[76] Mr Scarpantoni’s position changed only after he was sent the deed as varied and signed
by Mr Mattner on 22 January 2023:30
“I gave it to Lisa again because Lisa would actually sort of deal with all the payroll. We
discussed this and she alerted me to the fact that sick leave shouldn’t be paid out. I said
well now this is starting to get confusing. So in the process I sort of delved deeper and
then everything started to become a little bit muddy…”
[77] I take into account that Trendscape did not sign the deed. This however is not evidence
that an agreement was not reached on 11 January 2023. The settlement was declared by the
conciliator and acknowledged by the parties. That declaration was confirmed by the conciliator
in writing and set out in the terms of the deed sent four days later. As noted, Trendscape did not
sign or implement the deed for reasons unrelated to whether an agreement had, in fact, been
reached.
[78] Whilst this matter is not attended to without some doubt given the terms of the
conciliator’s email of 15 January 2023 and the negotiation that ensued, on the balance of
probabilities it is open to find, and I do so, that Mr Mattner and Trendscape reached an
agreement in conciliation on 11 January 2023 on terms of a contractual nature in settlement of
matter U2022/11793 and also agreed that those terms will be dealt with by subsequent formal
documentation. One of those terms was that the calculation of the agreed settlement sum would
be double checked, and if after checking a higher amount was agreed, that would be paid. There
was no suggestion that the settlement sum would not be paid or that settlement would not
proceed according to its terms.
[79] The agreement was as described by the conciliator at the conclusion of the conference
on 11 January 2023 as reflected in the terms of the deed sent by the conciliator on 15 January
2023, subject to the settlement sum quantum being checked.
[80] Both parties checked the calculation which resulted in a claimed addition of three days
of wages owing ($792.00 as sought by Mr Mattner) and the deletion of a sum for sick leave not
taken ($561.00 as sought by Trendscape). This re-checking was contemplated by the 11 January
2023 agreement.
[81] The evidence before me is that the sick leave deduction was expressly agreed between
Trendscape and Mr Mattner on 18 January 2023. However, there is no evidence of an express
agreement by Trendscape to the additional three days of wages added to the calculation by Mr
Mattner. Even though Mr Mattner believes this sum is owing, I do not conclude that
Trendscape’s agreement to this sum can be inferred from its silence between 22 and 31 January
2023.
[82] Accordingly, I find that the agreed quantum after rechecking was the settlement sum as
advised by the conciliator on 15 January 2023 ($22,184.70) less an agreed deduction of $561,
being the sum of $21,623.70.
[83] This agreement was a binding settlement agreement. It was either in the first category
of Masters v Cameron or what is generally referred to as the fourth category as set out in
Baulkham Hills. As the varied quantum was a varied but not additional term, the agreement
[2023] FWC 633
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falls more neatly into the first category of Masters v Cameron and I so find. Either way, it was
a binding settlement agreement.
Conclusion on binding settlement agreement
[84] A binding settlement agreement was made on 11 January 2023. It exists in the terms of
the deed sent by the conciliator on 15 January 2023 with the stated quantum of the settlement
sum reduced by $561.00 due to subsequent agreement made after checking, resulting in a
settlement sum of $21,623.70.
[85] A binding settlement agreement evidenced by the deed obliges the parties to give effect
to their agreement on its terms.
[86] There is one further issue arising. Mr Mattner made his application (on the advice it
seems, of an officer of the Fair Work Ombudsman) before his alleged dismissal took effect.
Whilst it has been unnecessary to determine other jurisdictional issues in light of my finding
that a binding settlement agreement existed, existing Commission authority suggests that a
premature application may be an irregularity requiring waiver under s 586 of the FW Act.31
[87] This circumstance does not impact the effect of this decision because the binding
settlement agreement includes a term which releases the employer from existing or future
action.
[88] However, as this issue was not raised with me at the hearing, had I found that a binding
settlement agreement did not exist then this issue would need to be dealt with in conjunction
with the other jurisdictional and merit issues. In that circumstance, I would have provided the
parties an opportunity to make submissions on this additional issue before further dealing with
the application.
Other matters in issue
[89] In light of the above, it is not necessary to make findings or determine whether Mr
Mattner was dismissed by way of forced resignation within the meaning of the FW Act.
[90] Nor is it necessary to determine whether, if dismissed, Mr Mattner’s alleged dismissal
was harsh, unjust or unreasonable or whether (if so) any remedy should be ordered.
Disposition
[91] As both parties recognised in their concluding submission, it was unfortunate that their
parting after a lengthy relationship in a small business took the turn it did and required
arbitration. Mr Scarpantoni indicated that whilst he was agreeable to pay what was lawfully
owed, he was looking for an independent assessment by the Commission. Via this decision that
has been provided at least on the settlement agreement question.
[92] I consider it sufficient, at this stage, to deliver this decision and allow a period for the
parties to confer and give effect to the terms of their settlement. I direct that the parties do so.
[2023] FWC 633
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[93] This is preferable than making orders concerning the utility of further Commission
proceedings or unnecessarily expressing views on the remaining issues litigated such as whether
the conduct of one side or the other was fair or unfair or forced or not forced.
[94] It is also preferable to court proceedings. As noted, a binding settlement agreement
evidenced by the deed obliges the parties to give effect to their agreement on its terms. Being
the exercise of judicial power, a binding settlement agreement is enforceable by a court.
[95] Thus, the appropriate course is for the deed as sent by the conciliator on 15 January
2023 less the sum of $561.00 be given effect in accordance with its terms. I have found the
settlement to have been the recalculated agreed sum of $21,623.70.
[96] The agreed terms provide for its signing, exchange and payment of the settlement sum
(less tax) and provision of a statement of service within seven days.
[97] Although for reasons mentioned the sum of $792.00 claimed by Mr Mattner for three
days of wages said to still be owing is not included in the settlement sum, this does not mean
that this sum is not due and owing at law. It is simply not included because it was not agreed to
be included.
[98] Having directed the parties to confer on implementation, I also recommend that they
confer on whether the three days as claimed are still owed. Agreement on that matter would
appear preferable to court proceedings or investigation of unpaid wages by regulatory
authorities such as the Fair Work Ombudsman. However, resolution of that issue, if not reached
within seven days, cannot and should not hold up the obligations parties have to implement the
terms of their settlement agreement.
[99] The terms of settlement also provide for discontinuance once Trendscape gives effect
to these terms. I draw to Mr Mattner’s attention that discontinuance can be undertaken by filing
a completed Notice of Discontinuance (form F50) or by email sent to the Commission.
[100] If orders are sought disposing of the application in light of this decision, both parties
have liberty to apply.
DEPUTY PRESIDENT
Appearances:
Mr J Mattner, on his own behalf
Mr V Scarpantoni, of and on behalf of Designer Gardens Pty Ltd T/A Trendscape Landscape
Professionals
Hearing details:
WORK COMMISSION HE THE SEA
[2023] FWC 633
16
2022
Adelaide (video)
14 March
Printed by authority of the Commonwealth Government Printer
PR760338
1 Permission was granted at the hearing on 14 March 2023 to amend the respondent’s name in these terms
2 A1 Statement 2 March 2023; A2 Statement in Response 10 March 2023
3 A4 Statement 2 March 2023
4 R1 Statement 3 March 2023; R2 Statement 10 March 2023
5 A1 paragraphs 23-30; A2 paragraph 116; R2 paragraphs 122-124
6 Email ‘Chambers-Anderson DP’ 14 March 2023, 9:11AM
7 A1 Attachments O, P, Q, S, T, U and V; A3; R3
8 Australian Postal Corporation v Gorman [2011] FCA 975 at [33] per Besanko J: “...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”. See
also Curtis v Darwin City Council [2012] FWAFB 802 and Lewer v Australian Postal Corporation [2023] FWCFB 56
9 A1 Attachment D
10 A1 Attachment N
11 A2 paragraph 23
12 A1 Attachment O
13 Ibid
14 A1 Attachment P (first item attached)
15 A1 Attachment Q
16 A1 Attachment R (second email)
17 A1 Attachment R (third email) and Attachment S
18 Emails at digital court book pages 4-9
19 A1 Attachment T
20 Email digital court book page 90
21 (1954) 91 CLR 353
22 (1986) 40 NSWR 622.
23 Singh v Sydney Trains [2017] FWCFB 4562
24 Ibid at [48] – [49]
25 Ibid at [51]
26 Ibid at [53] – [54]
27 Recording of Hearing, 14 January 2023, 1:22:20 – 1:22:45
28 Recording of Hearing, 14 January 2023, 1:13:05 – 1:14:35
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwafb802.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4562.htm
[2023] FWC 633
17
29 Recording of Hearing, 14 January 2023, 1: 17: 44 – 1:18:05
30 Recording of Hearing, 14 January 2023, 1:18:35 – 1:19:10
31 Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1070.htm
