Mrs Deidre De Bruyn v Mr Bob Smith, the Body Corporate for the Sanctuary CTS40659 - [2025] FWC 1011

[2025] FWC 1011

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Mrs Deidre De Bruyn
v

Mr Bob Smith, The Body Corporate for the Sanctuary CTS40659

(AB2024/725)

COMMISSIONER DURHAM

BRISBANE, 10 APRIL 2025

Application for an FWC order to stop bullying – whether terms of settlement agreement sufficient to resolve the matters in dispute – whether any conditionality to the settlement agreement – whether agreement in-principle – whether binding settlement agreement reached – whether application can proceed if resolved by binding agreement – binding agreement reached – application dismissed

This decision arises in relation to an application seeking an order to stop bullying that was made by Mrs Deidre De Bruyn on 23 September 2024 (the application). The application identified two respondents, the Body Corporate for the Sanctuary CTS 40659 (Sanctuary) and Mr Bob Smith who is the Chairman of the Committee of the Body Corporate for Sanctuary at Buderim CTS (jointly as the Respondent).

Mrs De Bruyn seeks to press her application; however, the Respondent contends that she is barred from doing so because a binding agreement was reached between the parties that settled the dispute on 12 November 2024. The Respondent submits that the application must be dismissed pursuant to section 587(1) of the Fair Work Act 2009 (the Act) on the basis that the underlying dispute has been resolved by a binding settlement agreement after the application was made.

For the reasons outlined below, I have found that a binding settlement agreement was reached by the parties. As such, the application has no reasonable prospects of success and is therefore dismissed.

Background

The Relationship between the parties

In 2023 Laro Real Estate Pty Ltd (Laro) purchased the caretaking rights for Sanctuary. The shareholders of Laro are Mr and Mrs De Bruyn, with the latter being the caretaker. The caretaking rights are attached to a residential lot that Mr and Mrs De Bruyn reside in on-site.

The relationship between Mrs De Bruyn and the Respondent is captured in a caretaking agreement between Laro and Sanctuary that outlines the conditions and services that Laro is contracted to provide to the Respondent.

The application

A worker who reasonably believes they have been bullied at work may apply to the Fair Work Commission (the Commission) for an order under section 798FC. For the purposes of this part of the Act, “Worker” has the same meaning as in the Work Health and Safety Act 2011, which provides that a worker is an individual who performs work in any capacity, including as an employee, a contractor or a sub-contractor.

It is common ground that Mrs De Bruyn is a contractor providing services to Sanctuary and is therefore eligible to make an application for an order to stop bullying.

The application outlined a range of issues Mrs De Bruyn was experiencing in her interactions with the Respondent relating to the performance of the caretaking contract. Many of these issues related to disagreements regarding the caretaker’s responsibilities as described in the contract. Mrs De Bruyn is of the view that the caretaker’s responsibilities are outdated and have been causing confusion. Mrs De Bruyn believes that over the years, the once low maintenance gardens, which are common property, have been modified by individual lot owners, leading to ongoing disputes around what is and is not her responsibility.

To resolve these issues, Mrs De Bruyn has been requesting the Body Corporate engage an independent expert to review the caretakers' responsibilities (professional review) for some time and felt that the Body Corporate were needlessly obstructing this. The situation led to ongoing conflict between the parties, resulting in Laro seeking to sell their caretaking contract. Mrs De Bruyn was of the view that the Respondent was needlessly frustrating this process also.

In short summary, Mrs De Bruyn was of the view that she was being held to account for work that she was not contracted to perform. Additionally, she felt that the Body Corporate, in particular Mr Smith was misrepresenting her responsibilities and engaging in behaviours towards her that she felt, constituted bullying.

On 28 October 2024, Sanctuary and Mr Smith filed their respective responses to the application. Both Sanctuary and Mr Smith contended the alleged bullying was reasonable management action, carried out in a reasonable manner.

The Commission’s involvement in this matter

The Commission held two conciliation conferences in this matter. The First Conference was to assist the parties with resolving Mrs De Bruyn’s complaints. A second conciliation conference was held to assist the parties resolve issues they were having in finalising the deed of settlement. There is now a dispute between the parties as to whether the matter resolved at the First Conference. The Respondent insists that the matter has resolved and that the Commission must dismiss Mrs De Bruyn’s application. Mrs De Bruyn argues that the matter was not resolved because final terms were not agreed and has advised of her intention to press her application for orders to stop what she asserts is bullying at her workplace.

In this matter, I have been asked to make a decision about a settlement agreement that was reached with my assistance. As will be evident below, both conferences the subject of this decision were held before me. My involvement was significant, and I continued to assist the parties with the finalisation of the settlement deed in the months following the First Conference.

It is not uncommon that when determining the nature of an agreement reached during a conference, the Commission may need to, and can, have regard to events that transpired in private conference.[1]

The First Conference

As is usual practice in these matters, I conducted a conciliation conference on 12 November 2024 with Mrs De Bruyn’s husband, Mr Mattheus De Bruyn attending as her representative, and Ms Kylie Stone attending as both Sanctuary and Mr Smith’s representative.

At the time of the conference, Mrs De Bruyn was in discussions with a third party who she says was interested in buying the caretaking rights from Laro. This third party was only interested in purchasing the caretaker rights, but not the residential lot. As such, the contract required the separation of the caretaking contract from the residential lot before it could proceed. I understand that the sale of the caretaker’s contract was desired by both parties and that agreement had been reached to commence the process of separating the contract rights from the residential lot — noting however the parties disagreed as to the timing and costs associated with related processes.

The remaining issues between the parties can be summarised as being focused on the interactions between Mrs De Bruyn and the Respondent regarding the performance of the caretaker contract. The Respondent was of the view that reasonable management action was being taken to address what they saw as shortcomings in the services being provided, however Mrs De Bruyn was of the view that the Respondent was acting unreasonably, and requiring performance of services not specified within the contract.

All of these issues were thoroughly canvassed during the conference, which ran significantly overtime, but did result in the parties agreeing on terms that they both agreed would allow them to move forward without the need for consideration of Orders. As the majority of the matters being resolved related more to commercial issues between the parties, and other entities not subject to the dispute, rather than the matter specifically related to any alleged bullying, it was agreed that the Respondent’s solicitor would draft a deed that captured the agreement that had been reached.

The following is a transcript of the recorded resolution reached:

“Commissioner Durham:
As has been agreed between the parties, Ms Stone is going to draft a deed that will settle a range of matters between the parties.
The deed will include the usual standard mutual confidentiality and non-disparagement terms. The deed will also outline that the Respondent agrees to initiate the professional review within seven days.
The Applicant agrees to commit that they still intend to go ahead with the sale. In terms of the sale and the costs associated with affecting that sale, the Respondent agrees that they will pay half of the legal costs in relation to the sale agreement, the change of contract and change of documents.
In terms of ongoing communication between the parties, it's agreed that any communication from the committee to the Applicant will go via a subcommittee. The subcommittee will be comprised of the Secretary, the Treasurer and two other members of the committee, who will be advised, and the Applicant will be advised in advance of who those Members will be. And it's also noted that Mr. Smith, as the chair, will step back from those communications.
The Applicant will be represented at those meetings - herself and her representative, and they will also be entitled to bring 2 independent unit holders to those meetings. Those two unit holders will be advised in advance and it is agreed that the proposed buyer of the contract…the caretaking contract. That buyer will not be one of those independent unit holders that is brought along on the basis of conflict of interest.
So I know that was a lot to get through. Can I just start with the Applicant? So Mr De Bruyn, on behalf of the applicant, can you just confirm that I've captured that correctly?
Mr De Bruyn:
Yes, that's great. Thank you.
Commissioner Durham:
OK. And Ms Stone?
Ms Stone:
Yes, that's correct. And also just noting it will also reflect that we're happy for the accommodation to be separated from the maintenance contract as well.
Commissioner Durham:
Which is obviously, the intent of the legal work was happening.
Ms Stone:
Yes as part of the sale.
Commissioner Durham:
Yes, okay. Do you understand that Mr De Bruyn?
Kylie Stone:
As part of the sale, yeah.
Mr De Bruyn:
Correct. That’s important, yes.
Commissioner Durham:
Alright, so parties, as I've indicated, Ms Stone will draft that deed and send a draft version of that out to the Applicant for review. Now with that in place. I am confident that there will be no need for me to issue any orders. So on that basis, can I ask both parties, so starting with Mr De Bruyn and if the deed is drafted in the terms that I've just run through, do you agree to sign and be bound by it?
Mr De Bruyn:
We do, yes.
Commissioner Durham:
Okay and Ms Stone, on behalf of the respondent.
Ms Stone:
Yes.
Commissioner Durham:
All right. Well, again, thank you all for your time. I know that we've gone significantly over time, but I think it was a worthwhile exercise to have this resolved.
On that basis, given that the parties have agreed to a way forward and I don't believe there's any risk to the ongoing health and safety of Mrs De Bruyn, on that basis, we will now close this particular application.
Thank you again for your time and I wish everybody well and hopefully I think Ms Stone you said you'd be able to get that deed out by the end of the week.
Ms Stone:
Yes.
Commissioner Durham:
Alright. Well thank you everybody.
Mr De Bruyn:
Thank you, Commissioner.
Ms Stone:
Thank you, Commissioner. Thank you everyone.”
End of Recording.

Events following First Conference

On 13 November 2024, the day after the conference, Mr De Bruyn emailed my Chambers and Ms Stone to advise that the proposed sale of the caretaking agreement had fallen through. Mr De Bruyn went on to state:

“However, we are still just as committed to proceed on the same terms, and it is in our best interest to sell as soon as possible. We have to find another buyer, but the rest of the terms can stay exactly as they are. For practical reasons we might need to clarify that we will have to do the de-linking and the next sale in two separate steps, but on the same terms as agreed yesterday. This will put us in a much better position to sell”. (emphasis added)

Mr De Bruyn also went on to outline a range of matters “of a practical nature” that he felt “upon reflection” were necessary to point out. These can be summarised as follows:

·     That Mrs De Bruyn’s commitment to contribute to the professional review should only be applicable if it is finalised, and a new contract is implemented before the contract is sold;
·     That a notice be sent to all owners and residents in relation to the conference that “clearly described the matter as having been settled with the assistance of the Commissioner, outside of a formal hearing”;
·     With respect to the agreement to contribute 50/50 to the legal fees, Mr De Bruyn sought that Mrs De Bruyn be provided a copy of the “Body Corporate’s solicitors itemised bill, so we can see where we stand, and the amount can be confirmed for the record”.

On 20 November 2024, my Associate contacted the parties seeking an update on the matter. Mr De Bruyn responded that he was yet to receive the deed. That same day, Ms Stone replied to Chambers, apologising for the delay in finalising the Deed. She indicated that whilst she was still awaiting final instructions, particularly with respect to the above additional matters raised in Mr De Bruyn’s recent email, the Respondent was agreeable to sharing a draft version to assist in moving the matter along.

This first draft version of the Deed was attached to the email. The Respondent maintains that this version incorporated the terms of the Agreement reached on the 12 November 2024. Ms Stone advised that she hoped to provide the finalised version of the deed and respond to the additional matters raised by Mr De Bruyn by 22 November 2024.

Mr De Bruyn did not wait to hear back from Ms Stone and instead, on 21 November 2024, sent to Ms Stone an amended version of the Deed which incorporated a number of changes including the removal of the draft non-disparagement clause, alterations to the confidentiality provisions and an additional term relating to the conduct of the professional review.

On 22 November 2024, Ms Stone wrote to Mr De Bruyn to advise the Respondent's view that the amendments being proposed were inconsistent with the Agreement they say was reached, and as such were not accepted by the Respondent. Additionally, Ms Stone advised:
“We note that an in-principle agreement has already been reached following the conference in the Fair Work Commission, which includes terms of mutual confidentiality, mutual non-disparagement and mutual releases. The above alterations to the Deed of Release do not align with the in-principle agreement reached on 12 November 2024. Further to this, the proposal that a notice be distributed to all residents would directly breach the term of confidentiality that was agreed to. Further, we consider that the agreement reached at the conference is final. The agreement reached was of the second kind referred to in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 and fourth described in Singh v Sydney Trains[2017] FWCFB 4562, being where the parties have reached a bargain by which they intend to be immediately bound but propose to have the terms restated more fully or precisely but not different in effect”.

Between 22 and 28 November 2024, the parties continued to exchange correspondence and updated versions of the deed. On 28 November 2024, Ms Stone wrote to Mr De Bruyn again outlining the Respondent’s view that the terms being proposed by Mrs De Bruyn were not agreed on the basis that they would alter the substance of the agreement reached.

On 29 November 2024, Mr De Bruyn wrote to Ms Stone alleging that the Respondent did not have “bona fide intentions regarding the settlement” and were intent to “frustrate and delay” the settlement. In the correspondence, Mr De Bruyn noted that if Mrs De Bruyn’s terms were not agreed by 1:00pm on Monday 2 December 2024, she intended to apply for a “continuation of the bullying application”.

That same day, Ms Stone replied to Mr De Bruyn’s correspondence stating:

“We consider that a binding agreement was reached at the conference on 12 November 2024 on the following terms:
a.Mutual releases;
b.Mutual confidentiality;
c.Mutual non-disparagement;
d.The Committee is to initiate a professional review of the caretaking agreement within 7 days of the Deed of Release being signed;
e.A commitment from the Applicant to proceed with the sale of the caretaking agreement;
f.The parties will contribute 50% of the costs towards the sale of the agreement, change of documents and the re-negotiation of the contract;
g.A sub-committee, comprising of the secretary, treasurer, body corporate manager and two committee members (to be advised of in advance of the meeting) will be used to communicate with the Applicant regarding the caretaking agreement.
h.The Applicant will be able to bring two independent lot owners to the subcommittee meetings (to be advised of in advance of the meeting and excluding the purchaser of the contractor).

As we have stated previously, the above agreement reached was of the second kind referred to in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 and fourth described in Singh v Sydney Trains[2017] FWCFB 4562. This means that the parties are immediately bound by the above terms, notwithstanding that formal written terms have not yet been signed. We consider the terms to be accurately reflected in the Deed of Release we have drafted.
Should you press for the stop bullying order application to be heard, we will seek orders that we first be heard on whether there is a binding agreement.
Despite the Deed of Release reflecting the above terms, if you are still not agreeable to signing, we propose to have the above terms reflected in a standard Fair Work Commission Deed of Release (subject to minor amendments)”.

That same day, Mr De Bruyn replied as follows:

“Our changes to the agreement captures all these items. Not everything is in dispute, yet the items that are in dispute, or the degree to which they are to be implemented, does have a material influence on the agreement.

Your client does not hold the sole right to decide on implied items, or items that were overlooked because conference (sic) ran over time.

All these items have been addressed in detail and our position is clear.

We will proceed on Monday as described.

We have made fair and reasonable changes, and your client does have the option to agree to it.

It seems your client is adamant avoid the review, as well as the decoupling and wants to restrict ALL the caretakers (sic) rights”.

In an attempt provide clarification, my Associate wrote to the parties, confirming my view that upon review of the recording of the conference on 12 November 2024, it was clear that, without objection from either party, a resolution was reached on the terms outlined in Ms Stone’s 29 November 2024 email at [28].

On 2 December 2024, Mr De Bruyn sent Ms Stone a signed copy of another version of the deed. Again, this version contained terms that the Respondent considered were inconsistent with the outcome reached on 12 November 2024.

Mr De Bruyn noted in this email that his amended deed “contains all the terms agreed upon expressly, as well as the implied terms to give effect to the settlement” and further, that he considered that his version of the Deed provided “practical steps and outlines to give effect to the settlement”.

The Second Conference

On 3 December 2024, my Associate wrote to the parties proposing a further conference at 10:00am on 4 December 2024. The purpose of the conference was to assist the parties to resolve the issues they were having drafting their own deed, using the standard Commission deed as proposed by the Respondent. A draft deed, containing standard Commission terms, and the terms as described by Ms Stone in [28] was prepared by my Chambers and forwarded to the parties for their consideration in advance of the conference.

On 4 December 2024, the parties attended the further conference. During the conference, the parties agreed to some sensible alterations to the draft deed prepared by Chambers. These changes were primarily in response to the proposed sale having fallen through. Additionally, the parties agreed to include a term requiring the calling of an Extraordinary General Meeting (EGM) to consider the separation of Mrs De Bruyn’s lot from the caretaking agreement. The parties agreed that these were sensible and practical additions to the agreed terms that would assist with finding a new buyer.

The conclusion of the conference was amicable and neither party indicated any further issues with the agreement reached, or how the remaining elements of the deed had been expressed. Neither party indicated that their agreement, or their willingness to sign an amended version of the deed, was conditional in any way.

It was agreed that Ms Stone would make the agreed amendments and forward the final version of the deed to Mr De Bruyn and that they would provide an update to my Chambers by close of business that same day.

At the conclusion of the Second Conference, I formed the view that the parties had reached agreement on how the deed was to reflect the original terms, as well as sensible amendments to the original terms agreed at the First Conference. It was my understanding, that these new terms would simply be incorporated into the draft deed and it would be signed.

Events following the Second Conference

Ms Stone provided the amended version of the deed to Mr De Bruyn for consideration as agreed. Later that same day Mr De Bruyn sent two emails to Ms Stone that the Respondent says proposed the addition of further commercial terms and sought further changes to the terms of the agreement including proposals for who should conduct the review, further terms relating to the calling of the EGM and additional amendments to the Commission’s standard mutual release clause.

In response to the above, Ms Stone emailed Mr De Bruyn advising the Respondent’s view that the proposed changes sought to include additional clauses not agreed to or discussed during the Second Conference, unnecessarily complicate the terms of the binding agreement (particularly the mutual releases clause) and featured dates for the EGM that were not achievable. Ms Stone also stated her view that the Respondent’s version of the deed, provided after the Second Conference, closely reflected the version drafted by my Chambers, with only minimal amendments, and continued to reflect what they believed to be the binding agreement made following the First Conference.

On 6 December 2024, Ms Stone provided a further amended version of the deed based on her instructions from the Respondent. Mr De Bruyn stated that he would provide a response to this version of the deed by 9 December 2024.

On 9 December 2024, Mr De Bruyn wrote to Ms Stone alleging that the deed provided on 4 December 2024 “does not reflect what was agreed upon”. Attached to the email was another version of the deed. Mr De Bruyn advised that if the Respondent did not sign this version of the deed by 10 December 2024, Mrs De Bruyn will “accept that we cannot revive the settlement” and “will apply to the Commissioner… to continue with the legal proceedings”.

This version of the deed was subsequently rejected by the Respondent on 10 December 2024, referring to their version of the deed for Mrs De Bruyn to sign.

On 12 December 2024, noting the primary area of dispute between the parties appeared to centre around the release clause, my Chambers wrote to the parties, again proposing a way forward. It was proposed that the release clause be amended so that it would only relate to this application, and the matters within the Commission’s jurisdiction.

On 13 December 2024, Mr De Bruyn wrote to my Chambers stating, “we are willing to accept the suggested clause, in an attempt to resolve the bullying dispute in good faith”.

On 13 December 2024, Ms Stone wrote to Chambers also confirming that the Respondent agreed to the suggested changes and attached an updated version of the deed to reflect the suggested amendment. Mr De Bruyn responded to Ms Stone stating that the updated version of the deed “does not reflect the changes agreed to at the second conference” and “contains items not agreed to”. I note however that Mr De Bruyn did not specify the components of the deed he felt did not reflect the agreed changes.

On 16 December 2024, Mr De Bruyn wrote to Ms Stone attaching a further amended deed. The Respondent noted their view that this version included a new mutual release clause and other terms they maintain were not agreed. In the covering email, Mr De Bruyn also outlined that “significant information has come to light” that allegedly “undermines the basis on which the caretaker agreed to the verbal settlement, rendering it invalid”. The email contained new allegations regarding the conduct of the Respondent with respect to legal advice obtained by the body corporate prior to the application being filed.

On 17 December 2024, Ms Stone provided another version of the deed to Mr De Bruyn. The Respondent says this version was based on the terms agreed upon during the 12 November 2024 conference and a release clause as suggested by my Chambers on 12 December 2024. This version of the Deed was signed by the Respondent.

Mr De Bruyn subsequently rejected this version of the deed on the basis that, in his view, it did not include the details agreed upon during the Second Conference. Furthermore, Mr De Bruyn noted his view that the Respondent’s actions render the settlement invalid, and ineffective to achieve the desired outcome of preventing further bullying and would therefore seek to continue with the bullying application.

That same day, Mr De Bruyn wrote to Chambers alleging that significant information had come to light that he felt proved that the Respondent had “acted in bad faith during the settlement negotiations”, which “undermined the basis on which Mrs De Bruyn agreed to a verbal settlement” and that she would like to apply to continue with the bullying application.

On 19 December 2024, my Associate wrote to the parties advising my view that:

“the attached deed (signed by the Respondents) is consistent with the agreement reached during the conference on 12 November 2024, is similar to the proposed deed sent by Chambers on 3 December 2024 and captures the agreed discussion during the second conference on 4 December 2024. It further reflects the Commissioner’s proposed wording to constrain the release clause as proposed on 12 December 2024”.

It was also confirmed that the “parties agreed to sign and be bound to an agreement drafted in these terms”. On that basis, Mrs De Bruyn was asked to “reconsider the attached deed”.

On 24 December 2024, Mr De Bruyn wrote to Chambers confirming that Mrs De Bruyn would like to proceed with the bullying Application.

On the same day, both parties emailed my Chambers expressing their separate views. Specifically, Mrs De Bruyn was of the view that the settlement relied on practical steps for an exit of the caretaker agreement which had been lost. Further, that the Respondent’s refusal to include practical steps to achieve this, even after adaptations became necessary due to the sale falling through, have resulted in her being unable to sign an agreement that relies on the good faith of the Respondent. She again confirmed that she wished to proceed with the application.

The Respondent maintained their view that a binding agreement had been reached, as confirmed in the recording at the First Conference. On that basis, the Respondent sought the opportunity to be heard on this matter before dealing with the substantive bullying claim.

On 21 January 2025, I issued directions seeking the parties file their material in relation to the question of whether there is a binding agreement between the parties. The parties’ views were also sought as to whether this question could be decided on the papers. Both parties consented to this approach.

The Respondent’s Position

The Respondent submits that Mrs De Bruyn’s application must be dismissed on the basis that the application was finalised when the parties reached a binding settlement agreement. They say this binding agreement operates as a bar to Mrs De Bruyn pursuing the application. The Respondent further submits that the substantive application is otherwise without merit, as Mrs De Bruyn has not been subjected to any unreasonable behaviour.

The Respondent submits, despite the binding agreement, Mrs De Bruyn has attempted to renege on the agreement and otherwise add additional terms which were not agreed.

The Respondent submits it is clear from the recording of the affirmations of the settlement at the conference on 12 November 2024, that the parties entered into a binding settlement agreement.[2] Further, the Respondent submits that the parties intended to be immediately bound by the agreement, with the performance of the obligations within the Agreement to be performed after the Deed was executed. The Respondent submits that such a situation is either a category one or alternatively a category two agreement under Masters v Cameron, and in either case there is a binding contract between the parties which can be relied upon.

Furthermore, Mrs De Bruyn’s own conduct indicates that an agreement had been reached, as was reiterated by Mr De Bruyn in correspondence exchanged by the parties. Mr De Bruyn repeatedly referred to a ‘settlement’ or ‘agreement’ between the parties as seen in his emails from 21 November 2024 to 17 December 2024.

Mrs De Bruyn also sought to revise the binding agreement by seeking additional terms or changes to the clauses referencing mutual releases, confidentiality and non-disparagement. The Respondent submits the instances detailed above wherein Mrs De Bruyn has sought to revise the terms of the binding agreement, appear to be instances of buyer’s remorse. However, as has been well considered by the Commission, ‘buyer’s remorse’ is not an appropriate basis to undo a “perfectly founded settlement”.[3]

The Respondent submits that, having found that a binding agreement was reached, the Commission should dismiss Mrs De Bruyn’s application in accordance with section 587 of the Act.

The Respondent refers to Bradley William Lewer v Australian Postal Corporation,[4] where an application made under the Act can be dismissed pursuant to the general power in section 587(1) on the basis that the underlying dispute has been resolved by a settlement agreement after the application was made.[5]

Alternatively, the Respondent submits that the Commission has the ability to utilise its implied power to decline to act on an application where it fails for want of jurisdiction, stemming from the binding agreement reached by the parties.[6]

It is further submitted that if it is found that a binding contractual agreement exists, then it follows that the Commission should dismiss Mrs De Bruyn’s application pursuant to section 587(1) as the dispute was extinguished by a settlement agreement.[7]

The Respondent refers to Snow v Flight Centre Travel Group (t/a Flight Centre) [2018] (Snow) FWC 4269, where a recording of the affirmations of a settlement was deemed by the Commission to be a binding agreement and consequently the bullying application was dismissed because it had no reasonable prospects of success in accordance with section 587(1)(c) of the Act.[8]

The Respondent submits that Mrs De Bruyn has continually refused to sign the deed of release and wants to press her application, however such an application cannot continue in circumstances where she has already bound herself to the terms on which she agreed on 12 November 2024. Further, given what was said by the Court in Masters v Cameron, any argument that the agreement is not valid because Mrs De Bruyn has not signed the deed of release will have no validity at all.[9]

The Respondent also confirmed that the terms of the binding agreement have been discharged (where possible), namely that:

(a) The Respondents have sought quotes from consultants to initiate the professional review; and
(b) Mr Smith has refrained from engaging in communications regarding the work to be completed by Mrs De Bruyn.

Accordingly, the Respondent considers there is also no future risk to the health and safety of Mrs De Bruyn as the settlement terms are already being enacted where possible.

The Applicant’s Position

Mrs De Bruyn submits that no binding agreement was reached. She contends that the “attempted verbal agreement” lacked the specificity and intent necessary to create a binding settlement and that material changes in circumstances, coupled with the Respondents’ conduct, render any purported agreement invalid.

Mrs De Bruyn submits that the Respondent’s submissions fail to address the impact of the collapsed sale on the enforceability of the verbal agreement and instead relies on a narrow interpretation of case law, particularly Masters v Cameron, without engaging with the unique facts of this case. Moreover, it is further submitted that the Respondent has denied, without proper justification, allegations of suppressing a legal opinion that vindicates Mrs De Bruyn’s position, further undermining the integrity of the agreement.

The verbal agreement

Mrs De Bruyn submits it is common ground that settlements in a standard employer/employee scenario could be of a very simple nature. The employee can remove themselves from the situation, or the work situation can be adapted, with relative ease. However, the situation changes when it comes to a contractor arrangement, and even more so in the unique caretaker-contractor scenario, where the caretaker has bought a long-term contract and resides on-site.

Noting these circumstances, Mrs De Bruyn submits that in exchange for the protection of a bullying order, she saw the settlement, which offered her a path to exit, as a faster solution to the problem. This path however, required a sale. The two steps required to affect the sale were the review and the de-linking of the contract from the property. These are both complex and detailed events and as such, Mrs De Bruyn expected the details would be “fleshed out in the written agreement”. Essentially, Mrs De Bruyn contends that the complex circumstances of the relationship required more detailed and practicable steps to be taken, and these were expected to be done in good faith and incorporated in the written agreement.

To that end, Mrs De Bruyn submits the verbal agreement terms reached on 12 November 2024 were too ambiguous to constitute an enforceable settlement agreement and insufficiently detailed to allow the parties to give effect to the settlement without further negotiation. Mrs De Bruyn submits that the conference ran over time and provided a short summary of the basic terms, which proved to be insufficient to give effect to the settlement and protect Mrs De Bruyn.

In summary, Mrs De Bruyn submits the verbal terms:

Did not take into account the complexities of the unique situation of the caretaker-contractor relationship and were too ambiguous to give effect to the required outcome;
Were too ambiguous to constitute an enforceable settlement agreement and relied too much on the Respondent fleshing out the details in good faith; and
Were insufficiently detailed to allow the parties to give effect to the settlement attempt without further negotiation.

Failure to agree on written terms

Mrs De Bruyn submits the Respondent refused to act in accordance with the nature and intent of the “attempted settlement”, to give effect to the basic principles stipulated at the conference and omitted implied terms that were necessary to give effect to the agreement as understood by Mrs De Bruyn, including terms essential to her ability to meet the conditions of the verbal terms.

Further, Mrs De Bruyn submits that the Respondent has twisted her words, with the intent of creating the illusion that her suggestions changed the nature of the agreement. The Respondent, she argues, has failed to address their own changes and additions, which she believes changed the nature of the agreement. Mrs De Bruyn’s submissions focus in large part on these contentions as they relate to a range of amendments proposed and made by the parties between 12 November and 24 December 2024. The key elements of these amendments have been summarised in the Background of this decision. I have not found it necessary to specifically address Mrs De Bruyn’s submissions in relation to each of these amendments or the interaction between the parties that surrounded them, however the parties’ submissions in this regard can be taken as read and have been afforded appropriate weight in my consideration.

Material Change in circumstances

Mrs De Bruyn submits that the collapse of the sale constituted a material change in circumstances which necessitated adaptations to the verbal terms, however the subsequent negotiations, which she says were an “attempt to breathe life into the verbal terms” failed.

Mrs De Bruyn therefore submits that this material change in circumstances is enough to render the verbal agreement invalid. However, because of her urgent need to sell, due to the impossible work conditions and her illness, Mrs De Bruyn was still willing to attempt to keep the verbal agreement alive, fully expecting the written agreement to provide the required substance to give effect to the process however this did not happen.

As the parties could not come to an agreement regarding the adaptations needed to incorporate this material change in circumstance, there can be no binding agreement.

The Respondent acted in “Bad Faith”

Mrs De Bruyn submits that in late December 2023, information came to light indicating that the Respondent had been aware of the correct legal standpoint regarding their contractual disputes around the scope of the caretaker’s agreement since May 2024, yet deliberately withheld this information. Mrs De Bruyn believes this added to the confusion about who should take responsibility for the improvements to gardens and was known to the Respondent at the time of the conference. Mrs De Bruyn believes that the suppression of this information shows the Respondent acted in bad faith and as such, there can be no binding agreement.

Impact of a finding that a binding agreement exists

Mrs De Bruyn submits that a decision finding the verbal terms were a binding agreement, will result in a significant injustice as she would be in a worse position than she was in prior to lodging the stop-bullying application, specifically that:

“She would be at the mercy of the Respondent, to keep stalling her exit, as they have already proven;
Her legitimate claims would remain unresolved due to the ambiguity of the terms;
Her rights have been compromised by the inclusion of terms favourable only to the Respondent, as well as a restrictive release clause preventing her from seeking further assistance with the ongoing dispute; and
She has been denied the benefit of the stop-bullying application and the protections it was intended to provide, especially since the bullying has not stopped.”

As such, it is Mrs De Bruyn’s submission that a binding agreement was not reached.

Consideration

The role of the Commission when dealing with alleged bullying at work is preventative – not remedial, punitive or compensatory. Similarly, orders that the Commission may make to stop bullying at work are intended to prevent the risk of further harm, but not to punish or provide financial compensation for past harm.

Mrs De Bruyn in her submissions, has necessarily referred to actions of the Respondent that she considers to be bullying. It is important to note that as this matter was considered to have been resolved at the conclusion of the First Conference, the parties have not been heard on the question of whether Mrs De Bruyn had been bullied nor whether any stop bulling orders were necessary.

The scope of this decision is therefore confined to determining whether a binding agreement was reached between the parties on 12 November 2024 and in turn, whether the matter should be dismissed. Whilst I acknowledge the deeply personal nature of this issue, particularly to Mrs De Bruyn, it is important to note that there has been no finding that Mrs De Bruyn has been or is at risk of being bullied.

In determining this matter, it is necessary to address the following questions:

1)   Was a binding settlement agreement reached?
2)   Do any other circumstances raised by Mrs De Bruyn impact on the validity of the agreement? and
3)   Considering the above, can the application proceed, or in the alternative, should the matter be dismissed pursuant to s 587.

Was a binding settlement agreement reached?

The Conferences

Before issuing stop bullying orders, the Commission must be satisfied firstly that the applicant has been bullied, secondly that there is a risk of the bullying behaviours continuing, and thirdly, that if such behaviours continued, they would pose a risk to the health and safety of the applicant.

Reaching the level of satisfaction required to issue stop bullying orders generally requires a formal hearing where the evidence of the parties can be tested. If, after hearing from the parties, the Commission is satisfied that the above conditions are met, the Commission can consider the issuing of stop bullying orders to prevent future bullying. This can be a time-consuming process which, given the very personal nature of the subject matter, can be emotionally trying for all involved. For these reasons, and noting the requirement under section 577 of the Act, that the Commission must perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities, it is common practice that, as a first step in these matters, the Commission will hold a conference with the parties to explore a resolution without the need to consider the issuing of orders.

It was for this purpose that the First Conference was listed. As is my practice in all such matters, the conference commenced with some opening remarks from me, in which I outlined the above. Having made these opening remarks, I then ask both parties if they were willing to participate in confidential, without prejudice discussions to see if a way to resolve the disputes between the parties can be found without the need for proceeding to a hearing to consider the question of the appropriateness of orders. I consider it relevant that:

both parties agreed to hold without prejudice discussions with a view to finding a resolution to this matter without the need to further consider the issuing of orders; and,
at the conclusion of the First Conference, I formed the view that the parties had reached an agreement regarding a way forward that had resolved this matter without the need to further consider the questions outlined in paragraph [87].

Capturing the Agreement following the First Conference

Having formed the view that the parties had found a way to resolve the matter, I sought their further agreement to go on the record to capture the agreement they had reached. Again, this is common practice in such matters. Using the notes I had made during the conference as a reference, I ran through my understanding of the agreement that had been reached between the parties. Importantly, I prefaced my words with the statement “as has been agreed between the parties”.

What was agreed

The transcribed recording can be broken down into several elements. The first element captured the agreement of the parties that the Respondent’s solicitor would draft a deed that would settle a range of matters between them and that the deed would:

· “include usual/standard mutual confidentiality and non-disparagement terms”; and
· outline that “the Respondent agrees to initiate the professional review within seven days” (emphasis added)

The transcript then clearly records me stating:

·     “the Applicant agrees to commit that they still intend to go ahead with the sale;
·     “the Respondent agrees that they will pay half of the legal costs in relation to the sale agreement, the change of contract and change of documents”.
·     With respect to ongoing communication between the parties, “it’s agreed that”:
o   Ongoing communication from the Committee to the Applicant will go via a sub-committee
o   The subcommittee will be comprised of the Secretary, the Treasurer and two other members of the committee.
o   The Applicant is entitled to bring a representative and two independent unit holders to these meetings;

The two unit holders will be advised in advance of the meeting; and
o “it is agreed that the proposed buyer of the caretaking contract will not be one of those independent unit holders”. (emphasis added)
Having run through the above, both parties were asked to confirm if I had “captured that correctly”. Mr De Bruyn clearly agreed that I had. Ms Stone also agreed but additionally raised that the Respondent wanted to reflect that “they were happy for the accommodation to be separated from the maintenance contract as well”. Mr De Bruyn was asked if he understood this. He responded “Correct. That’s important, yes”.

The transcript then goes on to capture that Ms Stone would draft the deed and send a draft version to Mr De Bruyn for review. I then state:

“with that in place. I am confident that there will be no need for me to issue any orders”.

I then ask the parties if “on that basis” (that I am confident that with the above in place there will be no need to issue orders) they agree to sign and be bound by an agreement drafted in the terms that I had just run through — both parties agreed.

The conference concluded with me noting that whilst we had “gone significantly overtime” I considered this had been worthwhile, “because the matter had been resolved”. In final summary, I noted that I did not consider there to be any ongoing risk to Mrs De Bruyn’s safety, and as such, the matter was closed.

Was the Agreement “subject to further negotiation”

Mrs De Bruyn does not agree that the verbal agreement reached between the parties was intended to be a finalised, binding settlement. Rather, she characterises it as being more akin to a set of “guiding principles” that required further negotiation and agreement before they became binding. Similarly, Mrs De Bruyn suggests that it was somehow implied, due to the complexity of the contractual matters, that further negotiations would be required.

The terms as agreed and reflected in the recording do not support this contention. Viewed objectively, had the parties intended the agreement to be subject to such further conditions, or negotiations, this would have been stated in the First Conference — it was not. The terms agreed did not include any reference to further negotiation, or the consideration of further terms.

The transcript clearly confirms that I held the view that the parties had reached a settlement agreement. Further the parties agreed that they would sign and be bound to a deed that was drafted to reflect these terms.

Noting my use of the terms “resolved”, I do not consider it reasonable to suggest that I would have taken the step of advising the parties that the matter was closed had I not been certain that the parties had reached an agreement to which they both intended to be immediately bound.

In these circumstances, it is difficult to accept Mrs De Bruyn’s arguments in this regard. Rather, considering the terms set out, the affirmations of the parties that those terms were agreed and my concluding comments, it is my view that a binding settlement agreement had been reached and that the matter was resolved.

Was the agreement “in-principle”

The Full Bench, in Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd[10] (Dawson), has recently considered the question of binding agreements in the context of a matter that had been administratively closed by the Commission. In Dawson, as in this matter, the parties had reached an agreement on a way to resolve the matter during a conference before the Commission. However, both parties in Dawson had described the outcome of that conference as an in-principle agreement, subject to the finalisation of the terms of settlement and the execution of a deed of release. As such, the parties were in agreement that no binding settlement agreement had been reached during the conference. The respondent in that matter referred to the in-principle agreement reached as falling into the third category described in Masters and Cameron.

In Dawson, it was evident that both parties agreed that no final settlement had been reached and that the in-principle agreement had not resolved all terms of the agreement. In these circumstances, the Full Bench found that the Commission had “erred in dismissing the application on the basis that a binding agreement had been reached in circumstances in which the parties agree that had not occurred”.[11]

It is not uncommon for parties to reach an in-principle agreement that is subject to further discussions and the finalisation of a deed. In such circumstances, as applied in Dawson, parties will often provide an update at a further date to confirm the finality of an agreement reached. It is not uncommon in these scenarios that parties are unable to finalise the terms of the agreement or the deed in which those terms are recorded. Those parties may ask the Commission to assist with further conciliation or confirm their intention to proceed to determination by the Commission.

This matter is not one of those situations. The First Conference was concluded with a resolution and consensus on the agreement reached between the parties. There was no mention of the agreement being subject to further or additional terms to be discussed further and later included in a contract or deed. The nature of the agreement reached at the First Conference was that the subject matter and terms had been agreed and would then be reduced to writing by the Respondent’s solicitor. As such, this matter’s set of facts are distinguishable from ones where an in-principle agreement is reached subject to a contract or deed.

Curiously, the Respondent does make reference, in their email dated 22 November 2024 to the “in-principle agreement reached”. However, except for this one instance, no further mention of the agreement being in-principle is made. For completeness, I consider this was a simple error on Ms Stone’s part, which was not repeated.

In any event, even if this once off description were to be the Respondent’s position, as per Dawson, the parties’ description of their agreement as “in-principle” is not determinative. Further, this characterisation of the agreement by the Respondent, if taken to be literal, would be inconsistent with the Respondent’s submissions about the binding agreement.

Were the terms ambiguous?

I do not accept Mrs De Bruyn’s contention that it was somehow implied, due to the complexity of the contractual matters, that further negotiations would be required. Had Mrs De Bruyn held such expectations, it would be reasonable to expect that she would have sought that the agreement be made subject to such further negotiations, or even, subject to the parties’ agreement on the final terms to be captured by the deed — she did not.

During the Second Conference, Mrs De Bruyn did not raise any further issues with the terms as drafted. In fact, her issues with subsequent versions centred on the release clause, the confidentiality clause and the non-disparagement terms, all of which had been based on the Commission’s standard terms, (as had been agreed) as well as additional specifications relating to matters that had not been specified during the conference (such as who would conduct the review, the timing of the EGM etc).

Further, when Mrs De Bruyn continued to raise concerns about the use of the standard Commission release clause, the Respondent agreed to my suggestion that the release clause be restricted to just this application, rather than all matters between the parties, meaning that it would not restrict Mrs De Bruyn’s contractual negotiations outside of what had been specifically agreed, nor would it have precluded her filing further applications with the Commission.

I further note that the elements of the agreement that specifically related to the communication between the parties — the inclusion of which led me to form the view that there was no ongoing risk to Mrs De Bruyn’s safety — have not at any stage been disputed, and neither party has sought any amendment to any of the wording proposed to capture those elements of the agreement.

I have not been persuaded that the terms, as agreed were ambiguous. Whilst it may well be true that Mrs De Bruyn has subsequently formed the genuine belief that further negotiations were required, one party forming such a view after reaching an agreement does not displace the agreement reached.

Were the terms of the agreement unresolved at the time the conference concluded?

I note Mrs De Bruyn’s contention that the conference was rushed. I take this to be a suggestion that the details of the agreement were in some way unresolved as a result of the parties running gout of time.

The conference, which had been scheduled for 2 hours, was conducted for over 3 hours. I acknowledge that the parties were advised that I had another matter commencing, and as such we would need to conclude their negotiations, however I do not accept that the outcome received any less attention than necessary, nor that the terms of the agreement were not finalised during the conference. In fact, significantly more time was allowed for the conference than was originally allocated, and a Second Conference was held to provide further assistance to the parties. Noting the discussion above, I have not been convinced that the terms of the agreement reached were unresolved.

Conclusions on the agreement reached between the parties

Having considered the above I find that:

·     both parties willingly entered without prejudice discussions.
·     both parties understood the intention of these discussions was to explore options to resolve the dispute between them without the need to further consider the issuing of orders.
·     at the conclusion of these discussions the parties agreed to terms of settlement that would not require further consideration of or the issuing of orders.
·     the parties then agreed to record the agreement they had reached.
·     the parties agreed with my final summary of the agreement they had reached without reservation.
·     the agreement was not in-principle, nor was it subject to any further negotiations.
·     the parties agreed to sign and be bound by a deed capturing their agreement.
·     neither party objected to my conclusion that, with the above agreement in place, there was no future risk to Mrs De Bruyn’s health and safety.
·     neither party raised any objection to my stating that the matter was closed.

Further, I find that following the Second Conference, the parties:
o   agreed on the wording of the deed that reflected the original terms (based in the Commission’s standard terms).
o   agreed on minor practical adjustments to the agreed terms to account for the sale falling through.
o   agreed to include an additional term confirming and EGM would be called; and
o   agreed on changes to the release clause that constrained it to just this application.
I find that none of the subsequent amendments made to the deed changed the substance of the settlement agreement reached at the First Conference.

Having found that the parties reached a settlement agreement as described above, the question for further consideration is whether this agreement was binding.

Was the agreement binding?

In Masters v Cameron, the High Court determined that there are three classes of settlement agreement when parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract. The three classes are:

The parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.
It may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.
The case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract:

· in the first case the parties agree to be immediately bound to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document,
· in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.

Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own. The expressions ‘subject to contract’, ‘subject to the preparation of a formal contract’ and others of similar import prima facie create an overriding condition so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract of itself.[12]

Mrs De Bruyn disputes the level of reliance to be placed in the authorities submitted by the Respondent, particularly Masters v Cameron however, as noted by Senior Deputy President Richards in Mrs Kristee Heyden v Maa Ambe Group Pty Ltd ATF Maa Ambe Unit Trust T/A Red Rooster:[13]

“The principles in Masters v Cameron provide clear guidance as to the status of any agreement reached in conciliation and are applicable in determining this matter. Ms McKinnon suggests the decision can be ignored. To ignore established legal authority is not appropriate and would lead to uncertainty in decision making by the Commission. There are well established public policy reasons relating to sound administration and consistency in decision making that determine the applicability of the reasoning in Masters v Cameron and in other relevant decisions of the Courts and this Commission to this matter.”

The Respondent submits that the parties intended to be immediately bound by the agreement, with the performance of the obligations within the agreement to be performed after the deed was executed. As such, they are of the view that the agreement reached was either a category one or, alternatively, a category two, agreement. Importantly, they say, in either case, consistent with Masters v Cameron, there is a binding contract between the parties which can be relied upon.

Further to my findings above, I have formed the view that the parties had completely agreed upon all the terms of their bargain and did not intend any departure from or addition to these agreed terms. The only term within the agreement that was subject to the execution of the deed, was the commencement of the review, which the parties agreed would be initiated within 7 days of signing the deed. Consequently, I find that the agreement reached falls within the second category contemplated in Masters v Cameron. It was therefore a binding agreement.

The significance of Mrs De Bruyn not signing the deed

In Zoiti-Licastro v Australian Taxation Office (Zoiti-Licastro) the Full Bench of the AIRC was dealing with an appeal which involved consideration of a settlement which contained terms that included “mutual releases by both parties in the usual terms”.[14] In that case, both parties were represented in the negotiations by Counsel and the Senior Deputy President at first instance expressly found that the appellant worker had agreed “to release the ATO from any liability arising from her employment …, save for personal injuries”.[15] In dealing with that aspect, the Full Bench concluded:[16]
“It is clear that the settlement agreement drafted by the ATO’s solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant’s focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005.” 12

The circumstances in this case are not dissimilar to those of Zoiti- Licastro. On the basis of the principles in Zoiti-Licastro, it can be concluded that simply because the precise wording of the terms of the agreement reached between the parties have not been settled in the conciliation, does not mean that a concluded agreement was not reached. Concentration on the words of the written agreement ‘miss the point.’ It is the verbal agreement that binds the parties, and I have not been persuaded that the verbal agreement was conditional in any sense.

The question of whether or not there was a binding agreement reached between the parties is a matter of fact. That Mrs De Bruyn did not sign the deed arising from the agreement reached at the First Conference does not mean that a binding agreement was not reached.[17]

Snow, referred to a related decision of Judge Vasta of the Federal Circuit Court, in which he considered whether a settlement agreement reached before a Member of the Commission, in circumstances not dissimilar to this matter, were binding. The Judge found that it was clear from the recording of the affirmations of the settlement, that the parties entered into a binding settlement agreement. Relevantly, in that matter, the applicant had not signed the deed that had been drafted to capture the agreement reached. In this regard, his Honour, in his Reasons for Judgment set out that:[18]

“…
27. Given what was said in Masters v Cameron …any argument that the
agreement is not valid because Ms Snow has not signed the deed of release has no
validity at all. It seems, then, that this application has no prospects of ever being
successfully prosecuted, and should not take up any further time in the Court’s
schedule.
28. I therefore dismiss Ms Snow’s application.”

Having found that the parties reached an agreement that falls into the second category described in Masters v Cameron, these same principles apply to this matter. At most, the only impact of Mrs De Bruyn’s failure to sign the deed is that it would delay the conduct of the professional review, the initiation of which was agreed would commence 7 days after the deed was signed.

Do any of the factors raised by Mrs De Bruyn render the binding agreement invalid?

The impact of the potential sale falling through

The parties were aware that the sale had fallen through the day after the First Conference. As noted above, Mrs De Bruyn identified that the deed would necessarily require some amendments but advised that the rest of the terms could “stay exactly as they are”, and importantly, that the agreement should proceed.

The impact of the sale was considered by the parties during the Second Conference and the parties agreed to some minor practical adjustments to the deed that I find adequately addressed the impact of the change in circumstances. I do not believe these minor practical adjustments could reasonably be described as a material change, particularly noting Mrs De Bruyn’s commitment to selling the caretaking agreement remained unchanged.

It is also relevant that the changes proposed by Mrs De Bruyn following the Second Conference did not relate specifically to the sale falling through.

In any case, the proposed sale falling through clearly raised additional issues for the parties, however I have not been convinced that the circumstances rendered the binding agreement void. Having found that the parties agreed to make minor practical amendments to the binding agreement to reflect the change in circumstances, any argument that the impact of the sale falling through was not considered is of no merit.

Impact of “significant new information”

Mrs De Bruyn submits that information came to hand that, had it been shared with her in advance of the conference, would have had far reaching consequences, including that the contract may not have needed to have been sold. Mrs De Bruyn suggests that had this information been known before the settlement negotiations, she would not have “agreed to the verbal terms in its current form”, or “would not have needed to settle at all”. That information was not in evidence and I have not seen it.

Whilst I note the purported significance of the information to the De Bruyn’s, and their belief that the Respondent acted in bad faith by not disclosing the information, the fact remains that the information, as asserted by Mrs De Bruyn, relates to the commercial dispute between the parties. Whilst I accept that the discovery of this information may well have changed Mrs De Bruyn’s views on the fairness of negotiations, and the agreement reached, they do not however lend support to her claim that no agreement was reached at the conclusion of the First Conference.

In any event, the fact remains that I have found the parties reached a binding agreement on 12 November 2024. Whether this information being withheld from Mrs De Bruyn constitutes bad faith or otherwise, is again immaterial to the question of whether a binding agreement exists.

Conclusions on other matters raised by Mrs De Bruyn

Having considered each of the matters raised by Mrs De Bruyn above, I have not been convinced that any of them impact on the validity of the binding agreement reached.

Notwithstanding the above, the scope of this decision is to determine whether a binding agreement exists such that it acts as a bar to the matter progressing. It is well established that the validity or otherwise of any such binding agreement, deed or contract is a civil matter between the parties that can only be tested in a court of competent jurisdiction.

Having considered all of the material provided, and the circumstances of this matter, it remains my view that a binding settlement agreement exists.

Should the matter be dismissed?

The power to dismiss an application under section 587 (1) is a discretionary one. It must be exercised in a judicial manner, having regard to the circumstances as a whole including the statutory objectives and context.[19]

It is generally accepted that, if an employee enters into a binding settlement agreement their application may be dismissed.[20] This is because the cause of action forming the basis of the application no longer exists after settlement is reached.[21]

As noted in Charmaine Hoad,[22] it is also well established that in cases where a binding settlement agreement has been reached between the parties, especially one requiring the discontinuance of proceedings, that the power in section 587 can be used to dismiss applications. The Deputy President refers to Potter v Darwin City Council, where it was stated that:[23]

“It is not appropriate that an application which has been settled now be heard and
determined as if that settlement had not been reached. Such an approach would not be
consistent with the statutory charter of Fair Work Australia in relation to this
jurisdiction.”

Similarly, the Respondent referred me to Bradley Willian Lewer v Australia Postal Corporation,[24] in which it was found that an application made under the Act can be dismissed pursuant to the general power in section 587(1) on the basis that the underlying dispute has been resolved by a settlement agreement after the application was made.[25]

In Australian Postal Corporation v Gorman 4 Justice Besanko accepted that an accord and satisfaction had been reached, in circumstances where parties in an unfair dismissal application had advised a member of Fair Work Australia that they had reached a settlement agreement, and that a deed of settlement would be entered into after some “toing and froing” and the applicant had subsequently refused to execute the deed. His Honour said that:[26]

“31. An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.
32. It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing, or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s.587.
33. There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard, are consistent with the recognition of an accord and satisfaction. Furthermore, the words of s.587 are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous, vexatious or without reasonable prospects of success.”

The Authorities clearly provide that where an employee seeks to pursue an application where a binding settlement has been reached the application can be dismissed for being frivolous or vexatious or for having no reasonable prospect of success.

Further to the relevant authorities, in considering whether to use my discretion to dismiss Mrs De Bruyn’s application I have had regard to the following:

That a binding settlement agreement exists between the parties.
The binding settlement agreement releases the parties with respect to any future action relating to Mrs De Bruyn’s substantive bullying application.
That the Respondents continue to consider themselves bound by the settlement agreement.
That the Respondent also confirms that the terms of the binding agreement have been discharged (where possible), namely that:
(a) The Respondents have sought quotes from consultants to initiate the professional review; and
(b) Mr Smith has refrained from engaging in communications regarding the work to be completed by Mrs De Bruyn. and

That any dispute relating to either party’s compliance with the binding agreement is capable of being pursued as a civil remedy.

With respect to Mrs De Bruyn’s concerns regarding fears that she will continue to be exposed to bullying behaviours, I note that the binding agreement contains elements that will serve as self-correcting and practical measures designed to avoid Mrs De Bruyn being exposed to behaviours she considered bullying in the future.[27]

Conclusion

Mrs De Bruyn filed her application on 23 September 2024. The Commission moved quickly to list a conference, with the aim of assisting the parties to find a resolution without the need for further proceedings. The parties did reach a resolution. The agreement reached provided a way for the parties to safely work together whilst striving towards their joint goal of finding a new buyer for the caretaking contract. It also addressed key contractual issues between the parties that were central to the disputes between them.

The pursuit of orders would not have resolved the contractual issues between the parties. The best that any orders, if issued, could have done would have been to put in place practical steps for the parties to take so that they could continue to work together while the commercial issues between them are resolved. The terms of the settlement agreement provided such terms.

The fact remains however, that the parties agreed on terms to resolve the matter and agreed to be bound by them at the First Conference. When the proposed sale fell through, they agreed to further minor amendments to account for this. Considering all of the circumstances of this matter, I accept the Respondent’s contention that the parties reached a binding agreement to settle Mrs De Bruyn’s section 798FC Bullying Application.

My finding that a binding settlement agreement was reached between the parties is a sufficient basis to conclude that Mrs De Bruyn’s application should be dismissed because it has no reasonable prospects of success.

The next sensible step would be for the parties to finalise the deed capturing the agreed terms, commence the professional review and continue to apply the measures that were agreed to assist the parties in their ongoing communications.

Given my findings that Ms De Bruyn’s claim has no reasonable prospects of success, the application is dismissed pursuant to section 587(1)(c) of the Act.

COMMISSIONER

[1] Gomma v WSP Australia Pty Ltd [2021] FCCA 353 at [8]. For a recent example see Mattner v Designer Gardens Pty Ltd t/a Trendscape Landscape Professionals[2023] FWC 633 at [30] – [53].

[2] Snow v Flight Centre Travel Group (t/a Flight Centre)[2018] FWC 4269 at [27].

[3] Chris Aka Christopher Lawless v Australasian Association of Philosophy[2021] FWC 2832 at [20].

[4] [2023] FWCFB 56.

[5] Bradley William Lewer v Australian Postal Corporation[2023] FWCFB 56 at [55].

[6] Ibid at [57].

[7] Amelia Janelle Dubern v Department of Justice and Community Safety[2023] FWC 2897 at [49].

[8] Snow v Flight Centre Travel Group (t/a Flight Centre)[2018] FWC 4269 at [21] and [26].

[9] Ibid at [27].

[10] [2025] FWCFB 50.

[11] Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd[2025] FWCFB 50 at [21].

[12] Curtis v Darwin City Council[2012] FWAFB 8021 (Ross J, Smith DP, Gooley C, 17 September 2012) at paras 62–63; see also Zhang v Spring FG Accounting Pty Limited[2021] FWC 14 (Bissett C, 4 January 2021).

[13] [2014] FWC 7854.

[14] PR967544 at [8].

[15] Ibid.

[16] Ibid at [12].

[17] Heyden v Maa Ambe Group Pty Ltd ATF Maa Ambe Unit Trust T/A Red Rooster[2014] FWC 7854 at [48].

[18] Snow v Flight Centre Travel Group [2018] FCCA 1089 at [25] – [28].

[19] Grabovsky v United Protestant Association NSW Ltd[2019] FWCFB 1964 at [12]; Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [39]

[20] See Howey v Mars Australia Pty Limited t/a Mars Petcare Australia[2012] FWA 6259 (Sams DP, 15 August 2012) at para. 97; and Tomas v Symbion Health[2011] FWA 545 8 (Gooley C, 23 August 2012) at para. 59

[21] Ibid.

[22] [2019] FWC 2034.

[23] [2010] FWA 6129 at [62].

[24] (2023) FWCBC 56.

[25] At [55].

[26] [2011] FCA 975 at [31] – [33].

[27] [2019] FWC 2034 at [106] and [115].

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