Lisa Jackel v Erindale Jersey Stud Pty Ltd - [2022] FWC 3027

[2022] FWC 3027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lisa Jackel
v

Erindale Jersey Stud Pty Ltd

(U2022/7045)

COMMISSIONER BISSETT

MELBOURNE, 23 NOVEMBER 2022

Application for an unfair dismissal remedy

Ms Lisa Jackel made an application to the Fair Work Commission on 12 July 2022 in which she sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Jackel’s application indicated that she was represented by Employee Dismissals. Ms Jackel was employed by Erindale Jersey Stud Pty Ltd (Erindale). Erindale was represented by Toop Workplace Law (TWL) and filed its response to the application on 25 July 2022.

BACKGROUND

Ms Jackel’s application was listed for conciliation before a staff conciliator on 16 August 2022. During that conciliation terms to settle the matter were apparently agreed. Those terms were that Erindale would:

(a)   Pay Ms Jackel 7 weeks’ wages ($8,078.00) less taxation
(b)   Treat the dismissal as a resignation
(c)   Provide Ms Jackel with a statement of service.

Following the conciliation conference, the staff conciliator sent a letter to the parties that said, in part:

Thank you for your participation in today’s conciliation in the above case. I confirm that you reached a settlement agreement and I confirm that the terms of settlement are to be sent out by Hannah Linossier and will include but not be limited to;

Payment
·In addition to any money the Respondent has previously paid to the Applicant, the Respondent will pay to the Applicant $8078.00. The Respondent will deduct tax from this amount in accordance with applicable law.
·The Respondent will pay this amount to the Applicant within 14 days of the Applicant and the Respondent signing this agreement.
·The Respondent will pay this amount by electronic funds transfer to the Applicant’s nominated account, to be provided by the Applicant’s Representative together with a signed authority from the Applicant and the signed Agreement.

Resignation
·The termination of the Applicant’s employment will be treated as a resignation.

Statement of service [Optional clause]
·Within 14 days of the Applicant and the Respondent signing this agreement, the Respondent will give the Applicant a statement of service stating:

othe Applicant’s position with the Respondent, and
othe Applicant’s period of service with the Respondent, and
othe Applicant’s duties and responsibilities for the Respondent, and
othat the Applicant resigned from the Respondent.

As this is an agreement reached between the parties, you must send your signed terms to the other party. Do not send a copy to the Commission as we do not keep any record of your agreement. You should however keep a signed copy of the agreement for your records. Any resignation or statement of service (if applicable) should be sent directly to the relevant party, not to the Commission.

The Applicant will need to file a Notice of discontinuance (Form F50) with the Commission, with a copy sent to the Respondent. The Commission will refund the application fee, if applicable, within four to six…

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.

Keep reading for free

Create a free CaseChat account to read Lisa Jackel v Erindale Jersey Stud Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 3027
Decision Date: 23 NOVEMBER 2022

CaseChat Overview and Summary

Lisa Jackel sought a remedy for unfair dismissal against Erindale Jersey Stud Pty Ltd pursuant to section 394 of the Fair Work Act 2009. The application was conciliated and terms of settlement were apparently agreed to on 16 August 2022. The terms included that Erindale would pay Ms Jackel 7 weeks’ wages, treat the dismissal as a resignation, and provide a statement of service. Following the conciliation, Ms Jackel raised concerns that the settlement agreement was made under duress. Ms Jackel sought to have the case reopened to address these issues. Erindale argued that an agreement had been reached and the case should be dismissed. The court had to decide whether a binding settlement agreement had been reached and if so, whether the application could be dismissed under section 587 of the Fair Work Act 2009. The court found that a binding settlement agreement had been reached between the parties on 16 August 2022 and that this agreement extinguished Ms Jackel’s claim for unfair dismissal. The court relied on the evidence of the staff conciliator, Ms Linossier, Mr Arnold and that of Ms Jackel herself, in particular the evidence that, at the end of the conciliation, the staff conciliator brought the parties together, detailed the terms of settlement, and asked each person if they agreed to those terms in settlement of the matter and that each person, including Ms Jackel, said that they did. The court also considered the conduct of the parties following the conciliation. Ms Jackel’s claims of duress were rejected as the medical report did not support a finding of fact that she was under duress at the time she made the agreement in conciliation. Even if Ms Jackel was under duress, the Commission lacks the power to set aside an agreement actually made. The court concluded that the application for unfair dismissal should be dismissed pursuant to section 587(1)(c) of the Fair Work Act 2009 as it had no reasonable prospect of success.

Orders