Beryl Murgha v Palm Island Company Community
[2022] FWC 2012
•29 JULY 2022
| [2022] FWC 2012 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Beryl Murgha
v
Palm Island Company Community
(U2022/5631)
| COMMISSIONER O’NEILL | MELBOURNE, 29 JULY 2022 |
Application for an unfair dismissal remedy - application settled in conciliation – file closed – request to have matter heard – no binding agreement reached
On 23 May 2022, Beryl Murgha (the Applicant) made an application for an unfair dismissal remedy with the Fair Work Commission. The Applicant alleged she was unfairly dismissed by Palm Island Company Community (the Respondent) on 6 May 2022.
On 23 June 2022, the parties attended a staff conciliation at the Commission where the matter apparently settled. On the same day, a letter confirming that agreement had been reached was sent by the staff conciliator to the parties and attached the terms of settlement. The letter also stated: “I confirm that the Applicant has agreed to waive the cooling off period that applied to this agreement.”
The next morning, on 24 June 2022, the Applicant advised the Commission that she did not wish to waive the 3-day cooling off period and wished to take the matter further. She reiterated this in a further email on 28 June 2022.
The Applicant contends that no agreement was made as she never agreed to waive the cooling off period. The Respondent contends that a binding settlement agreement was reached at the conciliation on 23 June 2022.
The parties filed material in support of their respective positions and the matter was dealt with at a hearing on 29 July 2022. At the hearing, the Applicant gave evidence that in private session with her, the conciliator went through some issues, including asking the Applicant whether she wanted to waive the cooling off period. The Applicant’s evidence is that she said no, and that the conciliator must have misheard her. When she received the letter from the conciliator stating that she had agreed to waive the cooling-off period, she promptly replied stating that she had not agreed to do so.
I accept the Applicant’s evidence and find that she did not agree to waive the cooling-off period. Within the cooling-off period the Applicant advised that she wishes to proceed to have her case dealt with by arbitration. There is no evidence to the contrary.
The cooling-off period is an opportunity generally provided to self-represented parties in conciliations conducted by Commission staff, to have a short period in which to reconsider whether to enter a binding agreement to resolve the claim. In this case, I find that the Applicant exercised this right and that therefore, no binding settlement agreement was reached at the conciliation on 23 June 2022.
Ms Murgha’s application will proceed to be dealt with by arbitration.
COMMISSIONER
Appearances:
B Murgha, Applicant.
L Dangerfield and N Gleeson-Henaway for the Respondent.
Hearing details:
2022.
Melbourne (by telephone):
July 29.
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