Kellin Behrendorff v JB HiFi - [2022] FWC 953

[2022] FWC 953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Kellin Behrendorff
v

JB HiFi

(U2022/206)

COMMISSIONER BISSETT

MELBOURNE, 18 MAY 2022

Application for an unfair dismissal remedy – matter settled at conciliation – request to reopen – whether a binding agreement existed.

On 31 December 2021 Ms Kellin Behrendorff (Applicant) made an application to the Fair Work Commission (Commission) seeking a remedy for unfair dismissal in relation to the termination of her employment from JB HiFi (Respondent).

The application was subject to conciliation before a staff conciliator on 16 February 2022 where it apparently settled. As was agreed at the conciliation JB HiFi drafted a Settlement Agreement to reflect the agreement reached and sent it to Ms Behrendorff on 17 February 2022. Ms Behrendorff replied that day to JB HiFi and said “I don’t agree with the below. It was never discussed with fair work on being apart of the contract. I won’t be signing it until it is removed.” (sic) On a request for clarification of what she objected to in the “standard settlement agreement”. Ms Behrendorff indicated that she objected to the inclusion of:

The part about never working for the company again. I didn’t agree to sign anything like that. And I won’t be, even if I am not working for the company again.

JB HiFi advised Ms Behrendorff that the clause in question was a standard part of JB’s settlement agreement and that they were not prepared to remove the restraint clause.

On 24 February 2022 Ms Behrendorff wrote to the staff conciliator and said:

Hi [conciliator]
What happens now that I’ve not agreed to sign that contract that JB have presented me and they refuse to take out the part I don’t agree/ did not agree with while the meeting took place?
I Will not be signing that contract with as little at 2K compensation to now work a lesser paying job at a lower skill level without weekly income.
Thanks
Kellin

On 28 February 2022 and 9 March 2022 Ms Behrendorff followed this up with further queries to the staff conciliator.

In between these dates, on 3 March 2022, Ms Behrendorff also emailed the Commission at a general Commission email address and said:

Hi there,
This issue is still not resolved. I’ve contacted [staff conciliator] several times with no reply at all.
Our mediation was weeks ago and there is still no outcome due to both parties not coming to an agreement.
Please advise.
Thanks
Kellin

On 9 March 2022 Ms Behrendorff again contacted the Commission seeking a response to her earlier email.

Ms Behrendorff’s email of 9 March 2022 was referred to my chambers. It is unclear why her earlier email not been referred to my chambers for action.

As a result of the request of Ms Behrendorff on 10 March 2022 my chambers listed the matter for a mention on 17 March 2022 and advised the parties accordingly. Ms Behrendorff advised her unavailability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kellin Behrendorff v JB HiFi

Details

AGLC: Kellin Behrendorff v JB HiFi [2022] FWC 953
Case: [2022] FWC 953
Decision Date: 18 MAY 2022

CaseChat Overview and Summary

Kellin Behrendorff brought a claim before the Fair Work Commission seeking a remedy for unfair dismissal by JB HiFi. Behrendorff alleged that the termination of her employment was unfair and sought compensation and other remedies. The case was subject to conciliation which apparently resulted in an agreement to settle the claim. Behrendorff subsequently refused to sign the written terms of the settlement agreement provided by JB HiFi because she disagreed with a clause that prevented her from working for JB HiFi again. Behrendorff asked the Commission to reopen the matter and find that no agreement had been reached in conciliation.

The central issue for the Commission was whether a binding agreement had been reached in conciliation to settle Behrendorff's claim. If so, Behrendorff's application for unfair dismissal would be dismissed. Behrendorff argued that she never agreed to the restraint clause in the written settlement agreement and that no binding agreement was reached. JB HiFi argued that a binding agreement was reached in conciliation to settle the claim and that the written terms reflected that agreement.

The Commission found that a binding agreement was reached in conciliation to settle Behrendorff's claim. The terms of the written settlement agreement reflected the agreement reached except for the restraint clause. However, the disagreement over the restraint clause did not mean no agreement was reached. Behrendorff's refusal to sign the written agreement did not negate the binding nature of the agreement reached in conciliation. The Commission dismissed Behrendorff's application for unfair dismissal on the basis that an agreement to settle the claim had been reached.

Orders