1
Fair Work Act 2009
s.394—Unfair dismissal
Richard Barrow
v
Pilbara Iron Company (Services) Pty Ltd
(U2023/3504)
COMMISSIONER BISSETT MELBOURNE, 3 OCTOBER 2023
Application for an unfair dismissal remedy
[1] On 24 April 2023 Mr Richard Barrow (the Applicant) made an application in which he
sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
The Applicant claimed he had been unfairly dismissed from his employment with Pilbara Iron
Company (Services) Pty Ltd (the Respondent) on 4 April 2023.
[2] A conciliation conference was held with the parties before a staff conciliator of the
Commission on 8 June 2023 where the matter was considered settled. The Applicant now seeks
to have his application for remedy for unfair dismissal heard. The Respondent objects to this
on the grounds that it says a binding settlement agreement was reached by the parties which
suggests that the original remedy for unfair dismissal application has no reasonable prospect of
success.
[3] I issued Directions to the parties on 15 August 2023. Both parties filed material in
response to those Directions and I granted permission for the Respondent to be represented at
the Hearing to determine whether a binding settlement agreement was reached between the
parties at conciliation.
Case law
[4] It is well accepted that parties to a dispute may agree to settle on certain terms. At the
conclusion of a discussion as to settlement, the parties may have agreed to resolve the dispute
in a number of ways. These were most succinctly recorded by the High Court in Masters v
Cameron where it was said:
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 cases. It may be one in which 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
[2023] FWC 2424
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2424
2
in effect. Or, secondly, 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. Or, thirdly, 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.
In each of the first two cases there is a binding contract: in the first case a contract
binding the parties at once to perform the agreed terms whether the contemplated formal
document comes into existence or not, and to join (if they have so agreed) in settling
and executing the formal document; and in the second case a contract binding the parties
to join in bringing the formal contract into existence and then to carry it into execution.
Of these two cases the first is the more common …1
[5] A Full Bench of the Commission in Singh v Sydney Trains2 (Singh) restated these
circumstances and added a fourth:
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. (Citations omitted)
[6] Where an agreement between the parties has been reached of the first, second or fourth
type described in Singh, that agreement now binds the parties and the original dispute (in this
case, the application for remedy for unfair dismissal) would be replaced by the agreement.
[7] In Australian Postal Corporation v Gorman (Gorman),3 Besanko J found that a valid
agreement (‘accord and satisfaction’) extinguishes the existing (unfair dismissal) application,
with a new cause of action based on the agreement reached. Whether there was an agreement
reached is a question of fact to be determined by the Commission. If it is found that there is a
valid agreement, the original dispute may be found to have no reasonable prospect of success.
[8] It is therefore necessary for the Commission to determine if the Applicant and the
Respondent reached an agreement at, or following, conciliation. If they did, it may well be that
the application for remedy for unfair dismissal has no reasonable prospect of success and
therefore should be dismissed pursuant to s.587 of the FW Act.
The case before me
The Applicant’s evidence
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[9] The Applicant agreed that he (along with his representative) participated in a
conciliation conference with the Respondent in relation to his unfair dismissal application. The
Applicant's evidence at the Hearing was that he did not sign the terms of settlement as he
believed them to be incorrect.
[10] The Applicant said that, at the conclusion of the conciliation, there was an agreement
that his termination would be changed to a resignation, that he would be given six weeks’ pay
and provided with a statement of service.
[11] The Applicant said in his written submissions that he received a copy of the written
terms and, upon reading the terms ‘note[d] that there seem[ed] to be no mention of a restriction
at working at Rio Tinto in the Agreement’. On noting this, he said he contacted his
representative from the Australian Workers’ Union WA Branch (AWU).
[12] On 20 June 2023 the Applicant sent an email to his AWU representative in which he
said that there was no mention in the agreement of a restriction on him working for Rio Tinto,
that there was no mention of how long such a restriction (if any) would last and requested that,
if it was a resignation in good faith, he would like references from his area supervisor and
manager to assist him in gaining further employment.
[13] On 10 July 2023 the Applicant’s AWU representative advised him that the Respondent
did not agree to changing the terms as he had sought. Shortly after, the AWU advised the
Commission that it no longer represented the Applicant.
[14] Following some further attempts by the Applicant to progress his issue with the
Respondent, on 6 August 2023 he requested the Commission reopen his matter and hear his
claim for remedy for unfair dismissal.
[15] In his request to the Commission on 6 August 2023 the Applicant said that ‘the
[R]espondent representative lawyer had made a request “that I do not work for any Rio
business” at (sic) time of mediation under the guise of changing the termination to a resignation’
and that this was not present in the agreement given to him to sign following the conciliation.
Further, the Applicant said that, while the agreement contained a non-disparagement clause, he
had been subject to disparagement, and is aware of former co-workers being told not to talk to
him.
[16] The Applicant therefore said that the draft agreement does not reflect what actually
occurred in the conciliation.
[17] The Applicant further said that there were matters not discussed in the conciliation
which were also not reflected in the agreement, which were now having an impact on his ability
to gain further employment. He said he should have been informed of any restriction the
Respondent intended to place on him in relation to future employment with it, and that he should
have been able to read the agreement before signing it.
[18] The Applicant said that he took the 14 days he believed were available to him to advise
the Respondent that he did not wish to sign the agreement (that is, the conciliation was on 8 June
[2023] FWC 2424
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2023 and on 20 June 2023 he advised his AWU representative of his concerns with the
agreement).
The Respondent’s evidence
[19] Mr Damien Peter Swingler of the Respondent attended the conciliation on the
Respondent’s behalf. His evidence is that, in the conciliation, the conciliator made some
introductory remarks, the Applicant’s representative outlined the Applicant’s position, and he
then outlined the Respondent’s position. The conciliator then spoke to the parties separately.
Mr Swingler said that the Respondent rejected the Applicant’s first proposal that the Applicant
be reinstated, but indicated the Respondent was prepared to consider a financial settlement.
[20] After further discussion with the Applicant, the conciliator returned and advised that the
Applicant offered to resolve the matter on the basis that his termination be treated as a
resignation, that he be provided with a statement of service and with six weeks’ pay.
[21] Mr Swingler said that the Respondent agreed to this and would need 14 days to make
payment.
[22] Mr Swingler gave evidence that it is the normal practice of the Respondent to flag the
file of any employee who has engaged in unacceptable conduct. Although he advised the
conciliator of this, Mr Swingler did not consider it to be a term of the agreement nor a matter
to which the Applicant’s agreement was necessary in order to enable the Respondent to settle
the remedy for unfair dismissal claim.
[23] Mr Swingler said the conciliator went to speak to the Applicant, then returned to Mr
Swingler and advised him that the matter was settled. Mr Swingler said this was the end of the
conciliation, and that neither party were called together for a joint session afterwards.
[24] Following the conciliation, Mr Swingler said he received correspondence from the
conciliator attaching a letter confirming settlement and the draft terms of agreement for the
parties to sign.
Was an agreement reached in conciliation?
[25] In this case, during the conciliation, the Applicant put forward a proposal to the
Respondent to settle his claim for remedy for unfair dismissal. His initial proposal (of
reinstatement) was rejected but a second proposal, put by him, was accepted by the Respondent
without any variation to that proposal.
[26] I am satisfied that, in the Respondent accepting the Applicant’s proposal of a settlement
consisting of a recharacterisation of the dismissal to a resignation, statement of service and six
weeks’ pay, an agreement was reached between the parties to settle the remedy for unfair
dismissal application.
[27] In Singh the Full Bench said: 4
[2023] FWC 2424
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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
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.
Ultimately the question is whether a “reasonable recipient of the acceptance would have
regarded it as corresponding to the offer or whether they would have taken the
acceptance to be qualifying the original offer such that it would amount to a counter-
offer or, at any rate, not an unconditional acceptance of what was originally
offered.” Put another way, the language used by the offeree in their acceptance of the
offer must be such as would convey to a reasonable person in the position of the offeror
a clear and definite decision by the offeree to be bound by the terms of the offer, leaving
nothing further to be negotiated.
A purported acceptance which does not correspond to the offer does not necessarily
reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. A counter-
offer accepted by the original offeror creates a binding agreement.
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. (Citations omitted)
[28] In the case before me, the Applicant made an initial offer which was rejected by the
Respondent. The Respondent invited a further offer, which was made by the Applicant and
[2023] FWC 2424
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accepted without equivocation, by the Respondent. The offer and acceptance precisely aligned.
It must be concluded that an agreement was reached between the parties.
[29] The Applicant’s objection goes however not to what is in the written agreement but what
is not in the agreement. On his own evidence, the Applicant said at the conciliation that he was
aware he could not be employed at a Rio Tinto site. Neither he nor the Respondent raised it as
an issue or bar to the agreement at the conciliation.
[30] As to the precise written terms of the agreement, it seems that the only term to which
the Applicant takes objection is the non-disparagement term. While the Applicant claims he has
been subject to disparagement, he has not provided any detail as to who has done so, in what
context it purportedly occurred or that person’s connection to the Respondent. In any event, I
am satisfied that such a term is a machinery term, not unusual in an agreement, such that the
failure to precisely discuss it as a term does not negate the agreement reached.
[31] The Applicant further said that he took the 14 days available to him under the agreement
to consider the terms and that, within the 14 days, he advised his representative of what he
wanted (a reference from his area superintendent and his manager). It is unclear how the
Applicant came to his belief that he had a further 14 days post-conciliation to put further terms
to the Respondent. Certainly, the Respondent had 14 days after the signing of the agreement to
effect payment, but this did not give the Applicant 14 days to further consider the agreement.
The correspondence from the conciliator sent after the conciliation contained no suggestion of
a 14 day ‘consideration’ period and stated: ‘I confirm that you reached a settlement agreement
and I attach terms of settlement’.
Conclusion
[32] For the reasons set out above, I am satisfied that the parties reached an agreement on
8 June 2023. The type of agreement reached is of the first kind described in Masters v Cameron
— that is, the parties reached finality as to the terms of an agreement, intend to be immediately
bound, and proposed restatement of the terms of settlement in a fuller or more precise form but
not different in effect.
[33] I do acknowledge the grievance the Applicant now has with the Respondent, but this
does not go to the issue of whether an agreement was reached at conciliation. In any event, as I
have said and as the Applicant insisted, he was aware of the policy of the Respondent at the
time of conciliation but did not suggest this should either be stated in the agreement or that it
meant no agreement was made.
[34] In these circumstances, the principles in Gorman as set out above are operative. If the
Applicant has a grievance about the agreement he reached, it is a dispute about the agreement
itself that is in existence — the dispute in relation to his dismissal has been resolved by the
agreement reached.
[35] I am therefore satisfied that the application for remedy for unfair dismissal has no
reasonable prospect of success. The application is therefore dismissed pursuant to s.587 of the
FW Act.
[2023] FWC 2424
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COMMISSIONER
Appearances:
R Barrow on his own behalf
J McLean of Counsel for the Respondent
Hearing details:
2023.
Melbourne and Perth (video hearing):
September 5.
Printed by authority of the Commonwealth Government Printer
PR766410
1 (1954) 91 CLR 353, 360.
2 [2017] FWCFB 4562 [53].
3 [2011] FCA 975 [31].
4 [2017] FWCFB 4562 [48]-[51].
E WORK COMMISSION WORK THE SEAL THE M$
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4562.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4562.htm
