Many people believe that unless it’s in writing, the deal hasn’t been done, but a chef found out the hard way recently, that that isn’t necessarily so.
The chef had been dismissed after a little more than six months work, and in the conciliation conference chaired by a member of the FWC, a settlement of $1,000 was reached. The Commissioner caused the terms of settlement to be sent to the parties, including a deed of release and advising the employee he had to file a notice of discontinuance.
The employer then paid the money into the employee’s account and signed the deed of release. At that point, the employee decided he now wanted $3,000, or else go to trial. He refused to sign.
The FWC recalled the parties and went over the settlement terms. In that hearing the employee admitted the settlement was verbally reached but that it wasn’t in writing. For its part, the employer argued that the matter had been settled in the conciliation hearing, so the case should be dismissed.
The FWC found that the verbal agreement to settle was in fact reached and that it did not matter the deed and notice of discontinuance had not been completed and signed off. These elements did not disturb the verbal agreement made in the conciliation hearing under the auspices of the FWC.
Citing extensive well-established case law including High Court decisions, the decision in this case spelt out clearly that a there was no need for the deed to be executed. The parties had struck a binding deal verbally in the conciliation. The FWC made the point that even though the parties intended to formalise their agreement with a deed, the terms of the settlement themselves were never conditional on that happening. That is, the circumstances were distinct from where the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract”.