Linh Tran v Westpac Banking Corporation
[2025] FWCFB 234
•20 OCTOBER 2025
| [2025] FWCFB 234 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Linh Tran
v
Westpac Banking Corporation
(C2025/8571)
| DEPUTY PRESIDENT GRAYSON COMMISSIONER CRAWFORD COMMISSIONER SLOAN | SYDNEY, 20 OCTOBER 2025 |
Appeal against decision [2025] FWC 2346 of Deputy President O’Neill in matter number U2025/9591 – permission to appeal refused.
Background
Linh Tran has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (‘the Act’) against a decision of Deputy President O’Neill to dismiss his application for an unfair dismissal remedy against Westpac Banking Corporation (‘Westpac’). Mr Tran’s application was dismissed pursuant to s.587(1)(c) of the Act on the basis that it had no reasonable prospects of success because a binding settlement agreement had been reached during a staff conciliation conference on 10 July 2025.
Rule 128(2) of the Fair Work Commission Rules 2024 (Cth) requires a notice of appeal to be filed within 21 days after the date of the relevant decision or order, or within such further time as allowed by the Commission. Mr Tran’s notice of appeal was filed on 2 September 2025. That was within 21 days of when the Deputy President published an edited version of the decision on 12 August 2025.[1] However, as is made clear at the beginning of the decision, it is “an edited version of the decision delivered ex tempore and recorded on transcript on 7 August 2025.”[2]
Both the decision that Mr Tran’s notice of appeal is directed at, and the order for Mr Tran’s application to be dismissed, were made by the Deputy President on 7 August 2025. Mr Tran’s notice of appeal was not filed within 21 days of the decision and order being made on 7 August 2025. As a result, Mr Tran requires an extension of time from the Commission to lodge his appeal pursuant to Rule 128(2)(c). We will return to this issue later in the decision.
A hearing was conducted by the Full Bench via video on 8 October 2025 regarding whether Mr Tran should be granted permission to appeal the Deputy President’s decision. Permission was granted for Westpac to be represented by a lawyer at the hearing on the basis that granting permission would enable the matter to be dealt with more efficiently given the complexity of the matter. Mr Tran did not oppose the granting of permission.
Permission to appeal
An appeal may only be brought with the permission of the Commission under s.604(1) of the Act.
The “public interest” is important in relation to the Commission’s power to grant permission to appeal a decision.
Under the general appeal provision in s.604 of the Act, the Commission’s discretion to determine whether to grant permission to appeal a decision is subject to a condition that the Commission “must grant permission if the FWC is satisfied that it is in the public interest to do so.”
The situation is different in relation to the appeal of decisions made under Part 3-2 of the Act, which is directed at unfair dismissal applications. Section 400(1) of the Act states that the Commission “must not” grant permission to appeal a decision made under Part 3-2 “unless the FWC considers that it is in the public interest to do so.” Section 400(2) of the Act then states that an appeal on a question of fact in relation to a decision made under Part 3-2, can only be made on the ground that there was “a significant error of fact.”
The applicability of the limitations on appeals concerning unfair dismissal applications in s.400 of the Act is not entirely clear where a decision is made to dismiss an application pursuant to s.587 of the Act. That section does not fall within Part 3-2 of the Act. The authorities suggest the proper approach is to assume that the limitation in s.400 of the Act applies to the decision to dismiss an unfair dismissal application under s.587 of the Act, but to alternatively state the conclusion that would be reached if s.400 did not apply.[3]
Consideration of the public interest involves a broad value judgment.[4] Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice.[5]
In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[6] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is an arguable case of appealable error to be granted permission to appeal, as an appeal cannot succeed in the absence of error.[7] However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.
Grounds of appeal and public interest contentions
Mr Tran’s notice of appeal identifies the following grounds:
1. The Deputy President erred in finding Mr Tran was represented, which deprived him of the benefit of a cooling off period.
2. Mr Tran was denied procedural fairness because he did not get the benefit of a cooling off period merely because Westpac indicated a cooling off period did not apply.
3. The Deputy President erred in finding there was a binding settlement agreement given that any agreement reached was conditional and Mr Tran did not sign a deed or settlement agreement.
4. The Deputy President erred in finding the application had no reasonable prospects of success given that Mr Tran should have been provided with a cooling off period and as there was not a binding settlement agreement.
Mr Tran advanced a fifth ground of appeal in his written submissions. Mr Tran argued that he was denied procedural fairness at the hearing before the Deputy President on 7 August 2025, because the Deputy President requested that the union official who represented Mr Tran at the conciliation conference on 10 July 2025 attend the hearing to provide evidence about whether a binding settlement had been reached, the effect of which was to leave Mr Tran self-represented at the hearing.
Mr Tran identified the following matters as making it in the public interest for permission to appeal to be granted:
1. Granting permission will allow the meaning of representation to be clarified.
2. Granting permission will ensure cooling off periods are applied properly and fairly by the Commission.
3. It is in the public interest to grant permission given that Mr Tran was denied procedural fairness concerning a cooling off period.
4. Granting permission will allow the proper application of the principles concerning where a binding settlement has been reached to be clarified.
5. The appeal raises questions of fairness and practice that extend beyond the interests of the parties.
Additional evidence
Mr Tran included several documents in the Appeal Book that were not before the Deputy President when the application was dismissed. Mr Tran confirmed during the hearing that he was seeking to rely on the documents as additional evidence for the appeal.
The additional evidence that Mr Tran seeks to rely upon is primarily correspondence between Mr Tran and his union representative prior to the conciliation conference on 10 July 2025 and then after the conciliation conference had concluded. There is also correspondence between Mr Tran, his union representative, and the Commission, which was exchanged prior to, and after, the hearing convened by the Deputy President on 7 August 2025. We have reviewed all the additional documents.
Westpac did not oppose the admission of the additional evidence.
The principles relating to the exercise of the discretion to admit additional evidence for an appeal under section 607(2) of the Act are summarised in Power Projects International Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[8] and include:
· It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
· The evidence must be such that there must be a high degree of probability that there would be a different verdict; and
· The evidence must be credible.
We do not consider that the additional evidence Mr Tran seeks to rely upon is likely to lead to a different outcome in the case. Many of the documents are directed at preparations for the conciliation conference on 10 July 2025 and about the extent of assistance that the union was agreeing to provide to Mr Tran. These documents are not relevant to the issue of whether a binding settlement agreement was reached during the conciliation conference on 10 July 2025. There was already a significant amount of evidence before the Deputy President about what had occurred during the conciliation conference on 10 July 2025 and we are not satisfied that any of the additional evidence provided by Mr Tran sheds any new light on the matters canvassed by Mr Tran’s appeal grounds including whether a binding settlement was reached.
In addition, most of the relevant messages and emails were available to Mr Tran prior to the hearing on 7 August 2025 and could have been relied upon at first instance.
Although we are satisfied that the additional evidence is credible, that alone is not a sufficient reason to exercise our discretion to admit the evidence.
We are not satisfied we should exercise our discretion under s.607(2) to admit the additional evidence that Mr Tran seeks to rely upon.
Appeal Grounds 1 and 2: Finding that Mr Tran was represented at the conciliation conference and no provision of a cooling off period
Mr Tran’s first two appeal grounds proceed on a misunderstanding about the operation of cooling off periods in the Commission and the purpose of the definitions of a “lawyer” and “paid agent” in s.12 of the Act.
Contrary to Mr Tran’s submissions, a cooling off period is not a “statutory safeguard” in relation to unfair dismissal settlements under the Act. The only reference to a cooling off period in the Act is in relation to the Commission’s power to suspend industrial action pursuant to s.425. Statutory cooling off periods do exist in other jurisdictions such as property and consumer law, but they are not a statutory safeguard for unfair dismissal settlements under the Act.
Mr Tran has correctly identified that it is common for unrepresented parties to be provided with a cooling off period by staff conciliators in relation to unfair dismissal settlements. Mr Tran has also correctly identified that the Commission refers to this common practice on its website. The Commission’s website states: “Unrepresented parties are usually offered a 3-day cooling off period following conciliation to decide if they wish to opt out of any agreed settlement.” The Commission’s website also states that: “If an agreed settlement has been reached, a written agreement will be prepared for both parties to sign. Unrepresented parties may be offered a 3-day cooling off period to decide if they wish to opt out of any agreed settlement.”[9] The advice provided on the Commission’s website appears to deliberately use the words “usually” and “may” to convey that a cooling off period will not apply to unrepresented parties in all cases.
It is important to understand that parties attending a conciliation conference are not bound to make or agree to any settlement offers. An employer respondent is also not bound to make a settlement offer which involves a cooling off period. There are understandable reasons for the common practice of providing cooling off periods to unrepresented parties. However, a common practice is not the same thing as a statutory entitlement. Mr Tran was entitled to request a cooling off period. Equally, Westpac was entitled to advise the conciliator that it did not agree to one.
Mr Tran has not identified an arguable case of appealable error in relation to him not being provided with a cooling off period because this was not a legal right or entitlement.
Mr Tran’s argument that he should have been provided with a cooling off period because he was not represented by a lawyer or paid agent falls away when it is understood that Mr Tran was not legally entitled to a cooling off period, even if he was not represented at the conciliation conference.
In any event, Mr Tran was represented at the conciliation conference on 10 July 2025 by a union official. It is expressly contemplated by s.596(4) of the Act that an organisation, being a registered organisation such as a trade union, can represent a person before the Commission. However, Mr Tran did not need permission from the Commission under s.596 of the Act to be represented by a union official even if they fall within the definition of a “lawyer” or “paid agent” given the exclusion in s.596(4). The definitions of “lawyer” and “paid agent” in s.12 have been included to clarify where a party needs permission from the Commission to have a particular type of representative. The definitions do not serve the purpose of specifying the only situations where a party will be deemed to be represented before the Commission.
Mr Tran’s first two appeal grounds do not disclose an arguable case of appealable error.
Appeal Ground 3 – binding settlement
Mr Tran argues that the Deputy President erred in finding that there was a binding settlement where the parties had completely agreed upon all the terms but had made performance of one or more of the terms conditional upon the execution of a formal agreement. The Deputy President identified this type of agreement as falling within Category 2 of the High Court’s well-known judgment in Masters v Cameron.[10]
The Deputy President provided detailed reasons for finding that there was a binding settlement agreement. This included reference to Mr Tran sending emails acknowledging there was a binding agreement and indicating that he wished to withdraw from that agreement. The Deputy President utilised the power in s.590 of the Act to gather evidence from Mr Tran’s representative about what occurred during the conciliation conference. The Deputy President referred to the staff conciliator’s email to the parties recording the substantive settlement terms after the conference on 10 July 2025. The Deputy President also took account of Mr Tran’s arguments that there was not a binding agreement.
The Deputy President undertook the required assessment in an orthodox and detailed manner. The evidence identified by the Deputy President supports a finding that there was a binding settlement agreement. We do not consider that Mr Tran has identified an arguable case of appealable error in relation to the Deputy President’s finding that there was a binding settlement agreement.
Appeal Ground 4 – no reasonable prospects of success
Mr Tran’s fourth appeal ground is that the Deputy President erred in finding his application had no reasonable prospects of success because he was not provided with a cooling off period and because there was not a binding settlement agreement.
This appeal ground largely falls away given we have not found an arguable case of appealable error in relation to the absence of a cooling off period for Mr Tran or the Deputy President’s conclusion that the parties reached a binding settlement agreement.
The existence of an accord and satisfaction between the parties means that Mr Tran’s application had no reasonable prospects of success. Mr Tran’s fourth appeal ground does not disclose an arguable case of appealable error.
Appeal Ground 5 – denial of procedural fairness
Mr Tran argues he was denied procedural fairness because the Deputy President requested that the union official who represented Mr Tran at the conciliation conference on 10 July 2025 attend the hearing on 7 August 2025 to provide evidence about what occurred during the conciliation conference and that he was unrepresented.
As referred to above, the Commission has a broad discretion to inform itself in a manner that it considers appropriate. Given the differing views between Mr Tran and Westpac about whether a binding agreement had been reached, it is readily apparent why the Deputy President considered that evidence from Mr Tran’s union representative may assist. Mr Tran heard his representative’s evidence and was able to challenge the evidence and make submissions about it. As it turned out, the representative’s evidence did not assist Mr Tran’s argument. We do not consider Mr Tran was denied procedural fairness merely because his former representative provided evidence that did not support his position. Further, we do not consider that he was denied procedural fairness by virtue of being unrepresented before the Deputy President. Mr Tran could have sought an adjournment to obtain representation but there is no evidence before us that he did so.
Mr Tran’s fifth ground of appeal does not disclose an arguable case of appealable error.
Public interest factors
Mr Tran’s misunderstanding about whether he was entitled to a cooling off period and about the meaning of representation under the Act does not mean that these are issues of importance and general application in relation to the appeal.
The principles for determining whether a binding settlement agreement has been entered into have been established by the High Court and are well-known. The Deputy President applied the principles to the particular facts of this case as required.
We are not satisfied that Mr Tran’s appeal raises issues of importance and general application, nor that there is a diversity of decisions at first instance, or that the decision manifests an injustice, the result is counterintuitive or that that the legal principles applied appear disharmonious when compared with other recent decisions.
We do not consider that the appeal raises matters that engage the public interest.
Extension of time
The following matters are generally relevant to whether a further period should be granted for the filing of a notice to appeal:
Whether there is a satisfactory reason for the delay;
The length of the delay;
The nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended; and
Any prejudice to the respondent if time was extended.[11]
Given we are not satisfied that Mr Tran has identified an arguable case of appealable error in the Deputy President’s decision, and the public interest is not enlivened, there is no sensible basis to extend time to file the notice of appeal.
We accept that a self-represented party may find it difficult to identify when a decision was made by the Commission where the decision is delivered ex tempore and an edited written decision is subsequently provided. It is likely we would have extended the time for the filing of the appeal if there was a stronger case for the granting of permission to appeal.
Conclusion and disposition
We refuse to grant a further period for the filing of the notice of appeal. The application for permission to appeal is therefore dismissed.
In any event, we would have refused permission to appeal due to the limitation in s.400 of the Act concerning appeals of unfair dismissal decisions. We would not have been satisfied that it is in the public interest for permission to appeal to be granted.
In the alternative, if the limitation in s.400 is not applicable to the decision, we would not have granted permission given the absence of an arguable case of appealable error and as we are not satisfied that Mr Tran has advanced any discretionary ground which would justify the grant of permission to appeal.
Finalisation of the settlement
We consider a major reason that controversy has arisen in relation to the settlement between Mr Tran and Westpac is that Westpac sent Mr Tran what appears to be a standard template deed of release to finalise the settlement. The document contains provisions that appear additional to the substantive terms recorded in the email sent by the staff conciliator to the parties following the conciliation conference on 10 July 2025.
We consider the appropriate course of action is for Westpac to urgently provide Mr Tran with a settlement agreement that is limited to the matters identified in the staff conciliator’s email.
DEPUTY PRESIDENT
Appearances:
Mr L Tran for himself.
Ms F Edwards from Sparke Helmore for Westpac.
Hearing details:
2025.
By Video using Microsoft Teams.
8 October.
[1] Linh Tran v Westpac Banking Corporation [2025] FWC 2346.
[2] Ibid [1].
[3] Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460, [9] - [14].
[4] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44].
[5] GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 (Makin), [27]).
[6] Trustee for the MTGI Trust v Johnston [2016] FCAFC 140, [82].
[7] Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, 204.
[8] (2011) 210 IR 357, [12], citing Akins v National Australia Bank (1994) 34 NSWLR 155, 160.
[9] ‘Conciliation’, Fair Work Commission (Web Page) Outcomes at Conciliation <
[10] (1954) 91 CLR 353.
[11] United Workers’ Union v The Corporation of the Trustees of the Roman Catholic Church Archdiocese of Brisbane [2025] FWCFB 203, [28].
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