Keith Chong v Lee & Sons Australia Pty Ltd T/A Tong-Yee Foods

[2021] FWC 246

[2021] FWC 246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Keith Chong
v
Lee & Sons Australia Pty Ltd T/A Tong-Yee Foods
(U2020/15339)

COMMISSIONER BISSETT MELBOURNE, 19 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 27 November 2020 Mr Keith Fou Lee Chong made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Chong had been employed by Lee & Sons Australia Pty Ltd T/A Tong-Yee Foods (Tong-Yee Foods) with his employment ending on 6 November 2020.

[2] The application was listed for conciliation before a staff conciliator on 14 December 2020 where a settlement between the parties was apparently reached. That settlement required Tong-Yee Foods, amongst other things, to pay to Mr Chong the sum of $15,000. The parties each had a three day “cooling off” period in which they could opt out of the terms of the agreement.

[3] On 23 December 2020 Mr Chong requested that his application for relief from unfair dismissal be heard as Tong-Yee Foods had not returned the signed settlement agreement nor paid the $15,000.

[4] On 5 January 2021 my chambers wrote to the parties and requested written submissions as to whether a settlement agreement had been reached and alerting the parties that the application may be dismissed as it had no reasonable prospects of success if a settlement agreement had been reached.

Submissions

Mr Chong

[5] Mr Chong said in his submissions that on 17 December 2020 he signed the settlement agreement.

[6] Mr Chong said he has not received a signed settlement agreement from Tong-Yee Foods and has been advised by a representative of Tong-Yee Foods that it does not consider an agreement had been reached. Mr Chong contacted Tong-Yee Foods again on 23 December 2020 and received the same response.

[7] Mr Chong said he is yet to receive signed terms from the Tong-Yee Foods at the time of making his submissions and, given the position of Tong-Yee Foods, does not consider that a settlement agreement has been reached.

Tong-Yee Foods

[8] Tong-Yee Foods failed to file any submissions or otherwise respond to the request for submissions from the Commission.

Conclusion

[9] In the circumstances of this case I accept that no settlement agreement has been reached.

[10] Whilst it may appear on its face that an agreement was reached the actions of the representative of Tong-Yee Foods since the date of the conciliation indicate that it never intended to be bound by any agreement ostensibly reached at that time.

[11] In these circumstances I consider that no binding agreement has been reached.

[12] The file will therefore be referred for arbitration.

COMMISSIONER

Final written submissions:

Applicant, 15 January 2021.

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