Ju Zhang v Terrabilly Nominees Pty Ltd

[2023] FWC 2813

[2023] FWC 2813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ju Zhang
v

Terrabilly Nominees Pty Ltd

(U2023/5377)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 2023

Application for an unfair dismissal remedy

1. Ms Ju Zhang has made an application to the Commission alleging that she was unfairly dismissed by Terryabilly Nominees Pty Ltd (Respondent). The application was the subject of a conciliation conference on 18 July 2023 and later, on the same day, email correspondence was sent by the conciliator to the parties stating:

“Thank you for your participation in today’s conciliation. Currently the Applicant is considering her position and she will advise me by email before 1pm WA time on Thursday 20 July 2023 of her intentions in this matter”.

1. The next correspondence on the Commission’s file was an emailed letter dated 20 July 2023 from the Conciliator to the parties, which commenced with the following:

“Thank you for your participation in today’s (sic) conciliation in the above case. I confirm that you reached a settlement agreement and I attach terms of settlement…”

1. For present purposes, it is relevant to indicate that the attached terms of settlement included a term by which Ms Zhang agreed to release the Respondent from all claims relating to her employment and the termination thereof (save for work related injury, illness, disease or death and unpaid superannuation) upon performance of a number of actions by the Respondent. As things stand, Ms Zhang has not signed the terms of settlement and the Respondent has made a request for the Commission advise Ms Zhang of ‘the next steps’ should she continue to elect not to sign the terms. In correspondence to the Commission and the Applicant, the Respondent has outlined that it would like to resolve the matter as agreed ‘in principle on conciliation’. The Applicant sent an email to the Commission on 14 October 2023, in which she outlined that she would like to reopen her case because the matter had not been settled.

1. On 23 October I conducted a Mention hearing with the parties. Ms Zhang appeared and was assisted by an interpreter while Mr Simon Pearce of the Respondent appeared and was granted permission, without objection, pursuant to s.596(2)(a) of the Act, to be represented by a paid agent, Ms Jenny Torsiello.

1. I heard from Mr Pearce and Ms Zhang and have been able to refer to the material on the Commission’s file. While Mr Pearce said all claims were resolved at the conciliation and that Ms Zhang had made no mention of unpaid wages during it, the correspondence sent by the conciliator to the parties after the conciliation, referred to in [1] above, suggests there was a different outcome. The conciliator’s correspondence stated that Ms Zhang was “considering her position” and would subsequently advise as to her intentions by 1pm (AWST time) on 20 July 2023. There was no record on the Commission’s file of Ms Zhang having sent an email to the Commission outlining her intentions by the stipulated time and yet the conciliator corresponded with the parties on 20 July 2023 to ‘confirm’ a settlement agreement had been reached.

1. At the Mention hearing, Ms Zhang claimed only the unfair dismissal was resolved at the conciliation and that she was told by the conciliator that unpaid wages went beyond the conciliator’s scope. I have however noted that Ms Zhang has also stated in her 14 October 2023 email that she had verbally agreed to ‘sign the settlement’. This was outlined in the following context:

“the conciliator told me this unpaid wage matter isn’t in her area of responsibility, but it is a fact that during the conciliation [the conciliator] told me after a brief browsing of appropriate awards, that I am not entitled to any paid breaks, also that I cannot come back at Mr. Jeremy Pearce for any more payments after this conciliation once I signed the agreement. That’s why I verbally agreed to sign the settlement. After the conciliation I phoned the Fair Work Ombudsman and their senior consultant said that I am entitled, and they will investigate this matter and come back to me within 2 to 4 weeks.” (my emphasis)

1. Given that Ms Zhang was unrepresented at the conciliation and English is not her primary language, and noting that she has required the assistance of an interpreter at both the conciliation and the Mention hearing, I am inclined to the view that Ms Zhang seems to have formed the understanding that verbally agreeing to sign ‘a settlement’ is something different in effect, to actually signing a settlement agreement. Further, having engaged with Ms Zhang in relation to the circumstances of this matter at the Mention hearing, I am satisfied her underpayment claims were significant matters for her and not claims she had agreed to drop at the time of the conciliation. In all the circumstances, I am not persuaded that Ms Zhang’s unfair dismissal application was settled at the conciliation on 18 July 2023.

1. Given my finding, Ms Zhang’s application file will now be forwarded to the Commission’s Regional Co-ordinator for Region 1 for allocation to a Member of the Commission based in Western Australia. The parties will then be notified in relation to the further case management of the application.

DEPUTY PRESIDENT

Appearances:

Ms Zhang on her own behalf
Ms J Torsiello for Terryabilly Nominees Pty Ltd

Hearing details:

2023.
Melbourne (by telephone)
23 October.

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