DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Robert Badcock
v
N & HM Cooper Motor Search (SA) & Car Clearance Centre (SA) T/A Motor Search
(U2018/6861)

Application for an unfair dismissal remedy – s.399A application by respondent employer to dismiss unfair dismissal matter – whether binding agreement made to settle – principles considered and applied to factual findings – objective intention was to make a binding agreement to settle unfair dismissal matter – ancillary terms were to be confirmed in written document – binding settlement agreement found in relation to the unfair dismissal matter – settlement amount now due – discretion to dismiss arises – employer undertook to pay agreed amount contingent upon Commission’s finding – appropriate and fair to exercise the discretion – unfair dismissal application dismissed.

1. What this matter is about

[1] On 4 July 2018, Mr Robert Badcock made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer N & HM Cooper Motor Search (SA) & Car Clearance Centre (SA) T/A Motor Search (Motor Search).

[2] The matter was listed for conciliation by telephone on 2 August 2018 before a Fair Work Commission Staff Conciliator. The application was not resolved at that stage.

[3] The matter was subsequently allocated to the Commission as currently constituted for determination. A directions conference to begin the determination of the unfair dismissal matter was listed for 29 August 2018. Both parties participated in this process and indicated a desire to have a Member Assisted Conciliation (MAC) to be conducted by another member of the Commission. The MAC was to be undertaken in parallel with the preparation of the application for hearing in accordance with directions that were issued at the time.

[4] On 12 September 2018, the matter was listed before Platt C to conduct the MAC. It is not in dispute that the matter did not resolve at that conference. What is in dispute are the events which followed the conference, which include a meeting between the parties on 16 September 2018 followed by various email exchanges. In particular, there is a dispute as to whether a binding agreement to resolve the unfair dismissal application was reached between the parties.

[5] On 18 September 2018, the Motor Trade Association of South Australia (the MTA) on behalf of the respondent wrote to the Commission to advise that the parties had “reached an in principle settlement agreement”. Email correspondence was sent to Mr Badcock from the Commission to seek confirmation of the agreement. Sometime later, Mr Badcock subsequently advised the Commission that the matter had not resolved. A further MAC was conducted, by consent of the parties, on 4 October 2018. The dispute regarding the status of the unfair dismissal matter was not resolved.

[6] On 8 October 2018, the MTA, on behalf of Motor Search, filed an application to dismiss Mr Badcock’s substantive unfair dismissal application pursuant to s.399A(1)(c) of the FW Act on the basis that a settlement had been reached.

[7] A hearing in relation to the s.399A application was conducted on 19 November 2018. This decision deals with that application.

2. The basis of Motor Search’s application to dismiss the unfair dismissal matter

[8] The MTA on behalf of the Respondent employer provided an outline of its submissions along with the witness statement 1 of Mr Norman (Norm) Cooper, which included a number of annexures. When considered along with the further oral submissions made at the hearing, the basis of the respondent’s application is as follows:

•  On 16 September 2018, an agreement was reached for the full and final settlement of all matters for an amount of $8,000 which included that it would later be formalised in a release document and that payment would be made within 24 hours of the release document being signed;

•  The agreement was reached between Mr Cooper, on behalf of the respondent employer, and Mr Badcock in an informal meeting where both parties agreed to “move on” and shook hands in a “gentlemen’s agreement”;

•  An email was sent by Mr Badcock on the same date confirming the agreement reached;

•  A further email was sent on 17 September 2018 on behalf of the respondent attaching a deed of release. Mr Badcock vaguely raised some concerns with the Deed which prompted Motor Search to review it and correct the payment terms (to be payable within 24 hours);

•  It resent the deed with the amended term and after having received no further communication followed up Mr Badcock on 25 September 2018; and

•  No issues were raised by Mr Badcock about the Deed until the matter was re-listed before the Commission.

[9] In consideration of the above, the Respondent contends that the initial acceptance of Mr Cooper’s offer by Mr Badcock on 16 September 2018 was an unqualified acceptance of the settlement agreement then reached between the parties. In support of this proposition it relies upon Mr Badcock’s apparent failure to challenge the terms of settlement (other than the payment term) until much later on when, it says, he sought to “undo” the binding agreement. That is, until the time that Mr Badcock sought to re-agitate his unfair dismissal application and lodge an underpayment of wages claim in another jurisdiction, the applicant had treated the outcome of the 16 September 2018 discussion as a “done deal” that was “still on”. This was also consistent with the notion that the parties would “move on” as stated immediately following that discussion.

[10] The respondent also contends that it was not necessary for Mr Badcock to have signed the deed for a binding agreement to be in place.

[11] As a result, Motor Search contends that there is a binding agreement to resolve the unfair dismissal application, and other matters, and that this should be confirmed by the Commission and the unfair dismissal matter dismissed. Further, it confirmed that a finding by the Commission of a binding agreement would lead it to pay the agreed amount to Mr Badcock.

[12] The respondent relies upon a number of authorities in support of its contentions, and in particular Masters v Cameron, 2 and describes the agreement reached as falling into either one of two categories of binding agreement recognised in that decision.

3. Mr Badcock’s position

[13] Mr Badcock contends that there is no binding agreement to settle his unfair dismissal application and seeks that that matter be listed for arbitration.

[14] Mr Badcock provided an outline of his submissions and a statutory declaration 3 that he had completed which included a number of attachments. As well as relying on the material filed he made some very brief additional oral submissions at the hearing. Mr Badcock contends, in effect, that:

•  There was no concluded agreement or any agreement (either full or partial) reached on 16 September 2018, or anytime thereafter;

•  There was no discussion about the terms of any payment or the essential terms of any agreement and there was no offer and acceptance;

•  The terms of any purported agreement were so uncertain that the parties were not ad idem (there was no meeting of minds) – and this is evident from the fact that what was intended by Mr Badcock was different to what was intended to have been agreed by Mr Cooper (in particular that there would be a full release involving all claims);

•  A Deed of release was not requested, required or agreed by him;

•  He had provided a written offer in the form of the emails on 16 and 19 September 2018 which could have formed the basis of an offer but this was not accepted by the respondent;

•  No payment was made or received for any settlement amount; and

•  The discussions between the parties does not fit within any of the different categories set out in Masters v Cameron such that it could be described as a binding agreement.

4. The events leading to the application to have the unfair dismissal matter dismissed

[15] Most of the events are the subject of written communications or records. However, there are some factual disputes about what was said and done at certain times. I have resolved these having regard to the probability and consistency of the witness evidence and my observations of Mr Cooper and Mr Badcock as witnesses. In that regard I note that there was a tendency in each parties’ written evidence to conflate what was intended by their oral statements with what was actually said. I consider that Mr Cooper was very open about the actual events when giving oral evidence.

[16] I find that the following chronology of events occurred:

•  The unfair dismissal application was filed by the Applicant on 4 July 2018. The applicant contended that Mr Badcock’s dismissal from his position as the main salesperson in the Respondent’s vehicle sales business was unfair as he had been given no consultation or notice of the employer’s (Mr Cooper’s) alleged retirement.

•  The response was lodged by Motor Search on 24 July 2018 and indicated that the dismissal was a case of genuine redundancy, and that no additional consultation would have changed the outcome of that redundancy. It also sought to rely upon the Small Business Fair Dismissal Code.

•  The parties attended the staff conciliation arranged by the Commission in relation to the unfair dismissal claim on 2 August 2018. The matter was not resolved.

•  The matter was listed for directions before this arm of the Commission on 29 August 2018. Directions were issued for the Commission to deal with the jurisdictional issues raised by the Respondent, namely, the Small Business Fair Dismissal Code and whether the dismissal was a Genuine Redundancy.

•  On 11 September 2018, the parties attended a telephone conciliation with the Fair Work Ombudsman (FWO) in relation to a potential underpayment of wages claim that had apparently been raised by Mr Badcock. The outcome of that discussion is in dispute; however, it is clear to me that the parties genuinely hold different views about the basis upon which the FWO conciliation concluded. I note that it was clearly an informal conciliation process rather than as part of any investigation conducted by the FWO and that most of the session involved the conciliator dealing separately with the parties. Mr Cooper considered that the underpayment claim had been dealt with by the FWO, and that it had determined, or at least that it had advised him, there was no entitlement to any underpayments. It is also apparent that Mr Badcock did not consider the underpayment matter to have been resolved by the FWO or that any indication was given that his position lacked merit. There was apparently no formal resolution or formulated claim at that point.

•  On 12 September 2018, the parties attended the MAC before the Commission in relation to the unfair dismissal matter. This did not resolve the dispute. At the conclusion of the conciliation, offers to settle the matter had been made by both parties; being, $6,500 by the respondent and $10,000 by the applicant. Based upon the limited evidence before me, it is not possible to make any findings about the precise conditions of those offers, including whether they were intended to be all inclusive of any claims or only in relation to the unfair dismissal matter which was the only matter before the Commission.

•  Immediately following the MAC, Mr Badcock spoke with Mr Cooper and indicated a desire to resolve the matter. Mr Cooper advised that he would discuss the issue with his wife. Mr Cooper subsequently contacted Mr Badcock on 15 September to arrange to meet.

•  On Sunday 16 September 2018, Mr Cooper and Mr Badcock met informally at a local Bistro. To do so was consistent with the fact that they are members of the same community club and had some expectation of continuing to come across each other, at least in that context, despite the cessation of their employment relationship. Leaving aside the understanding of the parties, the following took place:

•  The meeting commenced at 10.00am over breakfast and concluded over an hour later having moved from the Bistro to a nearby park to avoid the noise;

•  Mr Cooper and Mr Badcock attended on their own;

•  It became apparent that both parties ideally wanted to resolve the matter and to enable them to move on;

•  Mr Cooper advised that he would increase his offer to $8,000 and the parties discussed that this would be paid as a redundancy and be “tax free”;

•  Mr Badcock initially rejected the proposal but as he was about to walk away, accepted the offer and the two men shook hands and agreed that the payment would be made within 24 hours; and

•  Mr Cooper advised that he would have the MTA provide some paperwork to Mr Badcock and Mr Badcock indicated that “my word is my word (or my word in my bond)”.

•  At about midday on 16 September 2018 Mr Cooper advised the MTA by email (not copied to Mr Badcock) that:

“meeting with rob

have met with rob this morning and we have shook hands at $8000 as a full and final settlement..Could you please send to both of us the release document you referred to….his email is [redacted]@hotmail.com....thanks norm” 4

•  Later on 16 September 2018, Mr Badcock emailed the following to Mr Cooper:

“Hi Norm,

Further to our meeting this morning, I confirm our in principle agreement that upon receipt of $8,000 by me I will;

1. Advise the Fair Work Commission the Unfair Dismissal Claim has settled.

2. File a notice of discontinuance or other FWC notification as may be required to withdraw the matter.

If required by you, the terms of settlement will remain confidential with the exception of any judicial requirement.

Would you please respond to this email within 24 hours to enable me to confirm the status of this matter to my advisers.

With Best Regards,

Rob.” 5

•  On 17 September 2018, Mr Cooper forwarded a deed of release prepared by the MTA. This was a relatively standard, but comprehensive, deed that purported to release the respondent from all claims arising from the employment, with the only exception being workers compensation matters. The payment term was stated to be 7 days from the signing of the deed.

•  Later on 17 September, Mr Badcock responded by email and indicated that “with respect the deed as suggested by the MTA is inappropriate. Please refer to my email”. 6

•  On 18 September 2018, the MTA on behalf of the respondent wrote to the Commission to advise that the parties had “reached an in principle settlement agreement”.

•  On 19 September 2018, Mr Badcock contacted Mr Cooper and advised that he had not yet received the settlement sum and requested that the money be transferred so that he could advise the Commission that the proceedings had settled. Mr Cooper responded and advised that the money had not yet been transferred as the deed had to be signed.

•  Mr Cooper then instructed the MTA to update the deed to reflect that the payment was to be made within 24 hours. This was provided to Mr Badcock later on 19 September 2018.

•  Also on 19 September 2018, having sought confirmation from Mr Badcock that the matter had been settled, which was not responded to, the directions and scheduled hearing were cancelled by the Commission on the basis that the applicant would file a Notice of Discontinuance when the terms of any settlement had been carried out.

•  On 25 September 2018, Mr Cooper reminded Mr Badcock that a revised deed had been provided with a 24 hour payment clause and that “a prompt return of this will allow (us) to settle the matter before the long weekend”.

•  Mr Badcock did not respond to the deed but on 2 October 2018 requested the Commission to relist his unfair dismissal matter for hearing.

•  In October 2018, Mr Badcock lodged an underpayment of wages claim in the South Australian Employment Tribunal seeking a payment in the order of $140,000.

5. Was there a binding agreement between the parties?

[17] Motor Search have sought that the Commission utilise the powers available under the FW Act to dismiss the application. Section 399A of the Act provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

... …

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[18] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. It is this latter ground that is relied upon in this case.

[19] It is therefore necessary for me to determine whether the unfair dismissal matter was settled through an agreement.

[20] The principles to be applied in making that assessment have been helpfully summarised by the Full Bench in Singh v Sydney Trains 7 as follows [Footnotes omitted]:

“[49] 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.

[50] 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.

[51] 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.

[52] The phrase “‘in principle’ agreement” or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract. However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating. In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.

[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.”

[21] The reference to Masters v Cameron is the High Court’s discussion in that case including as follows:

“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. 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 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. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v. Miller (1) when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. His Lordship proceeded : ". . . as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed" (2) : see also Sinclair, Scott & Co. Ltd. v. Naughton (3). A case of the second class came before this Court in Niesmann v. Collingridge (4) where all the essential terms of a contract had been agreed upon, and the only reference to the execution of a further document was in the term as to price, which stipulated that payment should be made "on the signing of the contract". Rich and Starke JJ. observed (5) that this did not make the signing of a contract a condition of agreement, but made it a condition of the obligation to pay, and carried a necessary implication that each party would sign a contract in accordance with the terms of agreement. Their Honours, agreeing with Knox C.J., held that there was no difficulty in decreeing specific performance of the agreement, "and so compelling the performance of a stipulation of the agreement necessary to its carrying out and due completion" (6): see also O'Brien v. Dawson (7).”  8

[22] During the course of the 16 September 2018 meeting, the concept of the agreement being “in-principle” was not discussed. That term did appear in the email from Mr Badcock later that day and it was used by the MTA when contacting the Commission. If there was an agreement made during the meeting, I would not consider that the expression “in-principle” meant in this case that a binding agreement was not contemplated. This is the circumstances where the context indicated otherwise as contemplated in Singh v Sydney Trains. 9 Indeed, both parties have for the most part conducted themselves on the basis that a binding agreement was reached; albeit that they now have a different view as to what was intended.

[23] In Zoiti-Licastro v Australian Taxation Office 10 (Zoiti-Licastro) the Full Bench of the AIRC was dealing with an appeal which involved consideration of a settlement which contained terms that included “mutual releases by both parties in the usual terms”. In that case, both parties were represented in the negotiations by Counsel and the Senior Deputy President at first instance expressly found that the appellant worker had agreed “to release the ATO from any liability arising from her employment …, save for personal injuries”.11 In dealing with that aspect, the Full Bench concluded:

“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

[24] In this matter, the parties were not represented in the 16 September discussions and the discussion about the terms of the settlement was more limited. The concept that the MTA would provide some documentation was not expressly agreed as a condition and based upon the evidence before the Commission it is not clear whether the likely terms of such a deed would have been understood by the applicant without a discussion of its terms. I do not consider that if any agreement was made on 16 September 2018 it was subject to (conditional upon) a deed being provided and agreed. I also do not consider that Mr Badcock’s email of 16 September 2018, or the two versions of the deeds themselves, subsequently became the agreement between the parties. In the case of the email, the response from Motor Search in the form of the deed went beyond the “offer” represented by that email. In the case of the deeds, the first was expressly rejected and neither was accepted by Mr Badcock at any point. The email (or the deeds) may of course have been a proper reflection giving effect to, and confirming, an existing agreement and I will shortly return to this aspect.

[25] On that basis, there is no agreement of the nature contemplated in the second, third and fourth examples outlined in Singh v Sydney Trains. This leads me to consider whether there was a binding agreement reached during the discussions on 16 September 2018 of the first kind outlined in that decision; namely, 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.

[26] The best evidence about whether the parties intended to enter into a binding agreement, and what its terms may have been, is the evidence of Mr Cooper and Mr Badcock about the actual discussions on 16 September 2018, including the context for that meeting, and their subsequent conduct.

[27] I am satisfied that both parties intended to make a binding agreement and proposed restatement of the terms of settlement in a fuller or more precise written form, which was not to be different in effect. That is, the payment of $8,000 to be paid by the respondent within 24 hours was intended to resolve the matter and enable the parties to move on. As confirmed in the evidence, details as to how the payment might be made and supplementary conditions such as confidentiality could be contained in the “fuller and more precise” form of a written confirmation; that is, in a deed reflecting the agreed terms.

[28] This view is entirely consistent with the conduct of the parties including the communications made by them immediately after the meeting. Both have also (until the making of the request to relist the unfair dismissal matter) conducted themselves as having reached an agreement but with some of the ancillary detail to be confirmed.

[29] The questions as to the intended scope of any agreement (whether it contemplated resolving all matters and potential claims between them - a complete release - or only the unfair dismissal matter) and whether in fact and in law there was an agreement made, also need to be considered and determined. Both parties have advanced partially different factual contentions and significantly contrasting propositions in this regard.

[30] Motor Search contends that following the FWO conciliation, the applicant would have had no expectation of an underpayment of wages claim and this is consistent with the view that the parties were seeking to resolve all matters in the context of the payments proposed by each. Further, it had also understood that its offers were for a complete release and the notion that both parties had intended to “move on” as a result of the 16 September 2018 meeting was consistent with such an outcome. Motor Search also contends that the decision by Mr Badcock to lodge the underpayment of wages claim represented a change of mind after the agreement was made. In that regard, it notes that Mr Badcock did not articulate the reason why the proposed deeds were unacceptable until after the matter had been relisted by the Commission.

[31] Mr Badcock contends that the outcome of the FWO conciliation was different and that he always considered that he could subsequently make an underpayment of wages claim. In that light, he was only ever interested in settling the unfair dismissal matter and that this was the only subject of the negotiations. The concept of the parties moving on arose in the context of avoiding the upcoming unfair dismissal hearing and was not an indication that the parties would have no further litigation. In terms of the deeds, Mr Badcock contends that he immediately advised that the deed was inappropriate and that as he had not sought or agreed to a deed, he did not need to engage in discussions about its terms; but rather, was insisting upon the agreement as outlined in his email of 16 September 2018.

[32] Although I have reached a different view about the formation of a binding agreement, in general terms I accept the position of Mr Badcock about these particular elements.

[33] It is common ground that the proposed scope of the settlement was not expressly discussed in the 16 September meeting and there is insufficient evidence about the earlier discussions to make any findings as to whether there was an expressed confirmation of the scope of any offers prior to the meeting.

[34] When viewed objectively, the only litigation that was on foot was the unfair dismissal matter and there had been no indication by the time of the 16 September discussion that Mr Badcock was actually going to make an underpayment of wages claim; noting that Mr Cooper considered that the issue was dealt with as a result of the views expressed by the FWO in the conciliation. There was also no discussion about any potential underpayment of wages claim in the 16 September 2018 meeting. The immediate communications from the parties was that there was a “full and final settlement” (Mr Cooper) and that “upon receipt of the $8,000 by me, I will advise the FWC that the unfair dismissal matter had settled” (Mr Badcock).

[35] It is a reasonable objective understanding that the parties were meeting to resolve the unfair dismissal matter. Although Mr Cooper may have had a broader intention associated with his offer, as he accepted in his evidence, this was not communicated in the meeting concerned, and whilst the MTA, acting in the interests of Motor Search, drafted a broad deed of release, this was not in my view reflective of the agreement reached between Mr Cooper and Mr Badcock on 16 September 2018. Mr Badcock’s email later that day actually recorded the substantive terms of the agreement made.

[36] I consider that the terms of the resolution had sufficient certainty and that objectively the parties were ad idem on the essential terms.

6. Conclusions and Orders

[37] On balance, I find that the parties entered into an agreement to settle the unfair dismissal matter on 16 September 2018 that was intended to be immediately binding. Its terms were enforceable and there was a proposed restatement of the terms of settlement in a fuller or more precise written form that was not to be different in effect.

[38] This is the form of resolution that has been found by the Commission and its predecessors to represent a settlement that has the result of impacting upon the capacity of an applicant to continue to advance a matter of this kind.

[39] This finding has two immediate consequences. The $8,000 is due and payable by Motor Search to Mr Badcock on the terms agreed between the parties. Secondly, the discretion in s.399A to dismiss the unfair dismissal matter arises.

[40] Given the settlement, and the confirmation given by Mr Cooper during the proceedings that the payment would be made if an obligation to do so was found, I consider that it is fair and appropriate to exercise that discretion.

[41] Accordingly, an Order 13 dismissing the unfair dismissal matter is being issued in conjunction with this decision.

[42] I note that Mr Badcock’s written submission foreshadowed making an application for costs. I presume that this was based upon a finding that the s.399A application lacked merit, but if that application is made, I will of course hear and determine it on its own merits. It may also be appropriate for Mr Badcock to take some advice about the grounds for the awarding of costs in this jurisdiction noting the findings as to credit of both witnesses, the balanced nature of the decision made by the Commission on this s.399A application, and the fact the s.399A application was ultimately successful, albeit on a different basis than originally advanced.

COMMISSIONER

Appearances:

R Badcock, the applicant, on his own behalf.

G Coppola, of the Motor Trade Association of South Australia, on behalf of N & HM Cooper Motor Search (SA) & Car Clearance Centre (SA) T/A Motor Search.

Hearing details:

2018

Adelaide

19 November.

Printed by authority of the Commonwealth Government Printer

<PR702294>

 1   Exhibit MTA-1.

 2   [1954] HCA 72, (1954) 91 CLR 353.

 3   Exhibit A-1.

 4   Annexure A to Exhibit MTA-1. The email address of Mr Badcock has been redacted for privacy reasons.

 5   Annexure RJB-1 to Exhibit A-1.

 6   Annexure D to Exhibit MTA-1.

 7   [2017] FWCFB 4562.

 8   [1954] HCA 72, (1954) 91 CLR 353, 361.

 9   [2017] FWCFB 4562, at [52].

 10  [2006] AIRC 45.

 11   Ibid at [8].

 12   Ibid at [12].

 13   PR702551.