Ms Sonja Gasser v HSE Mining Pty Ltd

[2021] FWC 348

[2021] FWC 348

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Sonja Gasser
v
HSE Mining Pty Ltd
(U2019/5805)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 MARCH 2021

Application for an unfair dismissal remedy.

Overview

[1] During a hearing on 23 June 2020 into an unfair dismissal application made by Ms Sonja Gasser, I facilitated the making of a settlement agreement between Ms Gasser and the Respondent, HSE Mining Pty Ltd (HSE). I made an audio recording of the settlement agreement which has been provided to the parties. The settlement agreement, as recorded, was immediately binding on Ms Gasser and HSE and included a term that they would sign a document setting out the settlement terms.

[2] Ms Gasser subsequently refused to sign the settlement terms and maintains that they are not binding and that she will not sign the terms until they are amended. Ms Gasser has further stated her intention to continue with her unfair dismissal application unless the amendment she seeks is made to the settlement terms. The reasons for Ms Gasser’s position centre on the terms by which she agreed to release and discharge HSE from past, present and future claims relating to her employment and the cessation of her employment. Ms Gasser also asserts that she was distressed when she signified her acceptance of the settlement terms and did not understand them.

[3] In her unfair dismissal Ms Gasser made serious allegations of harassment, bullying and criminal conduct said to have been perpetrated against Ms Gasser and her two sons. The allegations were made against HSE managers, Unions, managers of companies Ms Gasser previously worked for and other unidentified persons. Ms Gasser asserts that the settlement terms will silence her and stop from pursuing these matters.

[4] The settlement terms were binding on Ms Gasser at the point she stated her agreement with the terms and that agreement was recorded on an audio device. Ms Gasser was informed that this would be the case before she agreed to the terms and her acceptance of this is also recorded.

[5] The settlement terms do not prevent Ms Gasser from pursuing allegations of criminal conduct against any person she believes has engaged in such conduct. The settlement terms do not bind Ms Gasser’s sons or prevent them pursuing any action against any person and nor do they prevent Ms Gasser from supporting or assisting her sons in relation to such action. Ms Gasser has refused to accept that this is the case and maintains her position about the settlement terms. Ms Gasser has also demanded to be paid an amount of money included in the settlement terms in circumstances where she is not entitled to such payment until she signs them and thereby complies with what was agreed.

[6] After unsuccessfully attempting to address Ms Gasser’s concerns with the terms of settlement by making minor amendments, HSE filed an application under s. 399A of the Fair Work Act 2009 (Act) seeking to have Ms Gasser’s unfair dismissal application dismissed on the ground that she has unreasonably failed to discontinue it after a settlement agreement has been concluded.

[7] I decided to determine the s. 399A application on the basis that the audio recording speaks for itself and for other reasons which I detail later. I conducted a Mention into the s. 399A application on 16 November 2020. At the conclusion of the Mention, I indicated to the parties my view that the matter could be determined on the basis of submissions they made at the Mention and material that had been filed in the Commission. My reasons for deciding to do so are set out later in this Decision. The Respondent agreed to this course and Ms Gasser did not disagree.

[8] For the reasons which follow, I have concluded that there was a binding settlement agreement reached on 23 June 2020 and that Ms Gasser’s application for an unfair dismissal remedy should be dismissed on the grounds that she unreasonably failed to discontinue that application after a settlement agreement has been concluded. Even if I accepted Ms Gasser’s she was distressed understand the settlement terms (which I do not) I have no power to set aside the settlement on those grounds. Only a court can set aside the settlement terms on those grounds.

[9] To ensure fairness to Ms Gasser, I indicated to her at the Mention that if I concluded that a binding settlement had been reached and that her application should be dismissed on that basis, I would give her a 21 day period to make an application to a court to set aside the terms of settlement if she wished to seek to do this and that I would not dismiss her application in that period.

[10] I took this step so that Ms Gasser would have time to consider her position and take legal advice before making an application to a court. I urge Ms Gasser to seek such advice. In my view, such an application would be a waste of time for Ms Gasser, the Respondent and the court. However, if Ms Gasser disregards this view and makes an application to the court within the 21 day period I will not proceed to determine the s. 399A application pending the Court’s decision.

[11] My reasons for deciding that there is a binding settlement agreement between Ms Gasser and HSE and that her application for an unfair dismissal remedy should be dismissed, are as follows.

Background

[12] The matter has a lengthy procedural history which it is necessary to set out. Ms Gasser’s unfair dismissal application was made on 27 May 2019. It was listed for Conciliation by a Fair Work Commission Conciliator on 25 June 2019 but was cancelled because the Conciliator was ill on the scheduled date. The Conciliation was relisted for 8 August 2019. The Conference did not proceed on that date because Ms Gasser was not available due to having obtained other employment and stated that she had not received confirmation of the date.

[13] Correspondence was sent to the parties by the Commission on 8 August 2019 informing them if they did not agree to a further conciliation conference the matter would be referred for hearing. The parties agreed to attend a conciliation conference and the matter was listed on 4 September 2019. Conciliation was unsuccessful and the matter was referred for arbitration and allocated to me.

[14] I conducted a Mention/Directions hearing on 8 October 2019 and Directions were issued for the hearing and determination of the application. The parties were required to file outlines of submissions and statements they intended to rely on at hearing. Relevant legislative provisions were attached to the Directions and the parties were required to ensure that their material addressed those provisions. Examples of witness statements were also provided. Ms Gasser filed material which did not engage with the legislative provisions. Ms Gasser also nominated a large number of witnesses and purported to provide verbatim records of discussions attended by those persons but did not provide any witness statements. Further, it was apparent that none of those persons had agreed to give evidence on behalf of Ms Gasser.

[15] HSE via its General Manager Human Resources, corresponded with the Commission requesting a further Mention/Directions hearing before HSE filed its materials on the basis that that Ms Gasser’s materials were in an unsatisfactory state, and the Companhy was having difficulties responding to that material.

[16] I agreed to that course and listed the matter for a further Mention/Directions hearing on 5 November 2019. Further Directions were issued requiring Ms Gasser to file witness statements in support of her allegations and to also confirm that persons who made such statements were prepared to attend a hearing and give evidence on her behalf. At Ms Gasser’s request the period of time for her to comply with those Directions was extended twice and her statements were required to be filed by 18 November 2019. Ms Gasser did not file her material on that date and did not seen an extension.

[17] On 21 November 2019 Ms Gasser corresponded with the Commission advising that she was still having difficulty obtaining statements and that she had been “told something very alarming” which was relevant to her case which she had reported to the Police. Ms Gasser also said that she was “back on night shift until 25 November 2019”. Ms Gasser was given another extension until 25 November 2019 to file her material. Ms Gasser did not file further material within that time frame and has not done so to date.

[18] A hearing in February 2020 was vacated due to a court room in Mackay not being available. Due to the onset of the COVID-19 Pandemic it was then necessary for the hearing to be conducted by electronic means. On 20 April 2020, correspondence was sent to the parties indicating that the matter would proceed to hearing by telephone on 19 May 2020 and that Ms Gasser had been afforded sufficient opportunity to file further material and had failed to do so.

[19] HSE sought to be represented by Mr Warren Swain an internal consultant in the HSE’s parent company. Directions were issued requiring Mr Swain to file an outline of submissions in relation to permission for such representation. On 14 May 2020, five days before the scheduled hearing, Ms Gasser corresponded with the Commission seeking an adjournment and citing work commitments and difficulty obtaining confirmation from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) that it would represent her at the hearing.

[20] I caused a response to be sent to Ms Gasser indicating that her request for an adjournment would not be granted and that if necessary the hearing would be conducted outside of ordinary working hours. Ms Gasser was also informed that as she had previously asserted that she was represented by the CFMMEU and cited the unavailability of officials of that Union as grounds for failing to file material, the Commission had sought confirmation directly from the CFMMEU in relation to whether the Union was representing Ms Gasser. Ms Gasser was reminded that correspondence had been received from the Union stating that it did not represent Ms Gasser in her unfair dismissal application and this was forwarded to Ms Gasser on 21 November 2019.

[21] On 16 May 2020, Ms Gasser again communicated with the Commission by email stating that:

•  Ms Gasser was being “pressured” to attend the hearing on 19 May 2020;

•  Ms Gasser was at work on day shift with no mobile telephone access for a 12 hour period each day from 14 to 20 May 2020;

•  The CFMMEU was representing Ms Gasser and needed more time to prepare her case; and

•  It would be unfair for Ms Gasser to be denied the right to be represented.

[22] By email on 18 May 2020, Ms Gasser was informed that the hearing date would be vacated but would not be deferred for an extensive period. Ms Gasser was also informed that the Commission would be communicating with the CFMMEU to again seek confirmation that the Union was representing her as this was contrary to its previous advice, sent to Ms Gasser on 21 November 2020. The CFMMEU corresponded with the Commission on 19 May 2020, confirming that the Union did not represent Ms Gasser in relation to her unfair dismissal application and stating that Ms Gasser had been informed of this several times. The matter was again listed for hearing on 23 June 2020.

[23] To assist the parties with the hearing, an electronic court book was made by the Commission containing all the material and documents filed by them in response to Directions. The court book did not contain any material other than that filed by the parties. The electronic court book was forwarded to the parties for use at the hearing.

Hearing on 23 June 2020

[24] A hearing was listed for 23 June 2020, to deal with the merits of Ms Gasser’s unfair dismissal application. HSE was granted permission to be represented by Mr Swain on the basis that he is an internal lawyer employed by a parent company, and that if permission was required, I was satisfied that it would enable the matter to be dealt with more efficiently having regard to its complexity. I also had regard to the fact that HSE’s Human Resources Manager had ceased employment in the period prior to Ms Gasser’s application being heard.

[25] At the commencement of the hearing, Mr Swain on behalf of HSE requested that I facilitate a discussion with Ms Gasser with a view to resolving the application by agreement. Ms Gasser agreed to participate in the discussion and stated that she also wanted to resolve the matter and did not wish to proceed to hearing. Before conducting the discussion, I ascertained – by asking Ms Gasser – that Ms Gasser was seeking compensation for her alleged unfair dismissal rather than reinstatement and that she had obtained other employment approximately three months after her dismissal took effect. I also explained the method by which the Commission calculates compensation for unfair dismissal. At Ms Gasser’s request I provided an explanation as to how costs are dealt by the Commission. An audio recording of these exchanges was made, as they took place during a hearing.

[26] Ms Gasser and HSE went on to make an agreement to settle her unfair dismissal application. I facilitated the agreement in private discussions with the parties both individually and collectively, which were not recorded. I then recorded the settlement on the audio device which was being used to record the hearing. The recording includes me reading the terms of settlement to the parties and explaining those terms. The recording also includes me confirming the understanding of the parties that as soon as they said “Yes I agree to the terms of settlement” the terms would be immediately binding on them. The recording includes Ms Gasser and the Respondent’s representative stating that they agreed to the terms and accepted the terms were immediately binding.

[27] The terms of settlement include a mutual release and discharge in relation to all matters, past, present and future, arising out of, or connected with, Ms Gasser’s employment, other than a claim under legislation relating to worker’s compensation, and the payment of a settlement sum to Ms Gasser. The terms of settlement also include terms in relation to confidentiality and non-disparagement and that the parties would sign a document setting out the agreed terms and that Ms Gasser would lodge a notice of discontinuance with respect to her unfair dismissal application on HSE complying with its obligations under the agreed terms. A document setting out the agreed terms of settlement was sent to the parties by me on 23 June 2020. The terms of settlement document was annexed to the s. 399A application filed by HSE.

Events subsequent to the 23 June 2020 hearing

[28] On 29 June 2020, when Ms Gasser had not signed the terms of settlement, I corresponded with the parties stating that a binding settlement was reached on 23 June 2020 and that as part of that settlement Ms Gasser had agreed to sign a terms of settlement document setting out the agreed settlement. Mrs Gasser sought and was provided with a copy of the recording of the settlement.

[29] On 22 July 2020, Ms Gasser responded to the email of 29 June stating that “further to the awkward settlement decision made on 23 June 2020” and since she had a chance to listen to the audio recording, Ms Gasser was unable to sign the terms of settlement until a clause in the terms was changed. Ms Gasser cited various reasons for her apparent change of position including that the digital court book contained a lot of evidence that she had been bullied and harassed at work. Ms Gasser also said that she had originally made an application for an order to stop bullying under s. 798FC of the Act which had been dismissed by Deputy President Clancy and that she was confused as to why this matter had been combined with her unfair dismissal application in the digital court book. Further, Ms Gasser states in the correspondence that:

“The reason I am unable to sign is because by doing so completely closes me from contacting HSE Mining from Past, Present or future”.

[30] Ms Gasser went on in her email to assert that she was cut off on 23 June 2020 and prevented from explaining the severity of her treatment by HSE managers and was under a lot of pressure. Ms Gasser also asserted that she understood that she was settling her unfair dismissal application only and that:

“There has been Criminal Activities which I have had to go to the Police about which have been a part of the 7 year continuous same pattern of Workplace Bullying Treatment which has followed me in my last 3 different Mine Sites by all lots of 3 different Mine Managers and Mine Project Managers.”

[31] Ms Gasser then set out various claims about a particular manager of HSE, which are essentially that he has communicated with an unknown person or persons from her previous employment to damage her in her employment with HSE. Ms Gasser goes on to state that she cannot sign the terms of settlement with the release in discharge in clause (h) because she and the Police are still investigating and may have to contact HSE to get answers out of the particular manager in order to identify who he has had contact with. Ms Gasser concludes by stating that if HSE wants to maintain the clause it should compensate her and her sons for all their damages, pain, trauma and suffering.

[32] On 5 August 2020 I corresponded with the parties seeking clarification from Ms Gasser as to what steps she was seeking that the Commission take in relation to her correspondence and the views of the Respondent about Ms Gasser’s correspondence. When no response was received from either party, I listed the matter for a further Mention on 23 September 2020, to canvas with them how this matter could be brought to a conclusion.

[33] On 21 September 2020, Mr Swain of HSE corresponded with the Commission stating that HSE’s position was that the application was resolved on 23 June 2020 when a binding settlement was reached. HSE acknowledged that Ms Gasser is and has at all times been entitled to pursue any complaint she has or wanted to make, with the Police, as this would not be affected by the terms of settlement and would solely be a matter between Ms Gasser and the Police. The correspondence also stated that HSE had no interest in re-negotiating the agreed settlement and reserved its rights to make an application to have Ms Gasser’s application dismissed and to bring an application for costs if Ms Gasser did not sign the settlement terms.

[34] At that Mention, on 23 September 2020, Ms Gasser was informed that signing the terms of settlement would not stop her from pursuing criminal action against HSE or its managers and did not affect rights her sons may have against HSE or any other person or organisation. HSE gave Ms Gasser until 4.00 pm on 30 September 2020 to sign the settlement terms. Ms Gasser was also informed that only a court could set aside the settlement on the basis of duress or other matters relied on by Ms Gasser. This was confirmed by email to Ms Gasser sent by my Associate on 28 September 2020.

[35] In an email dated 30 September 2020, Ms Gasser stated that she would accept the settlement sum for her claim of unfair dismissal only and only under the condition that items (h) and (i) were removed from the settlement terms. Items (h) and (i) are the mutual release and discharge terms that apply to both parties. Ms Gasser confirmed that she refused to sign the settlement terms until that change was made. Ms Gasser also stated that she was giving HSE until 3.30 pm on 30 September to make the change to the settlement terms so that she had sufficient time to sign the document before the 4.00 pm deadline set by HSE. Ms Gasser concluded by stating that if the change to the settlement terms was not made she would take the matter to a court to have the settlement terms set aside.

[36] On 30 September 2020, HSE corresponded with Ms Gasser attaching a copy of the terms of settlement with the following amendments made to items (h) and (i):

(h) On the Applicant complying with her obligations under these Terms of Settlement, the Respondent forever discharges and releases the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or in connection with the Applicant’s employment with the Respondent, including but not limited to the cessation of employment.

(i) On the Respondent complying with its obligations under these Terms of Settlement, the Applicant forever discharges and releases the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands actions or proceedings, arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment and other than the claims identified in (j). 1

[37] HSE went on to provide Ms Gasser with a deadline of 4.00 pm 1 October 2020, to sign the terms of settlement and repeated that if Ms Gasser did not do so, HSE would apply to have her unfair dismissal application dismissed and for its costs.

[38] On 16 October 2020, when Ms Gasser did not sign the terms of settlement document, HSE filed an application under s. 399A seeking that Ms Gasser’s unfair dismissal application be dismissed. I decided to deal with the s. 399A application given my view that the audio recording speaks for itself and that by dealing with the s. 399A application on the basis of an audio recording and correspondence from Ms Gasser, I would be in no different position than any other member of the Commission required to determine a s. 399A application where it is asserted that a binding settlement has been reached.

[39] In deciding to deal with the s. 399A application I also had regard to the fact that the Commission is not empowered to set aside a binding settlement agreement where it is alleged that it was entered into under duress or misunderstanding so that I would not be required to determine whether Ms Gasser’s claims that she was under duress or did not understand the terms of settlement should be accepted. The s. 399A application was listed for Mention on 16 November 2020.

16 November 2020 Mention

[40] An audio recording was made of the Mention. During the Mention I attempted to engage with Ms Gasser to understand her position. Ms Gasser was allowed to read out a lengthy statement in which she repeated allegations she had previously made about bullying, harassment and criminal conduct on the part of HSE managers, Unions and other unidentified persons she contended has been directed against her and her sons. Ms Gasser became extremely distressed while outlining these matters. Ms Gasser also said maintained that she was distressed on the day that the settlement was discussed and did not understand the effect of the terms.

[41] Ms Gasser repeated her assertion that the settlement terms were an attempt to silence her and maintained that she would not be silenced. I put the following propositions to Ms Gasser in relation to the settlement terms agreed on 23 June 2020:

•  The settlement terms were binding at the point Ms Gasser orally agreed to them;

•  The settlement terms are binding regardless of whether or not Ms Gasser signs the document setting out the terms;

•  The effect of the settlement terms is that Ms Gasser cannot continue with her unfair dismissal application;

•  If Ms Gasser unreasonably fails to comply with the settlement terms by attempting to proceed with her unfair dismissal application that application can be dismissed under s. 399A; and

•  The Commission has no power to set aside a settlement agreement on the basis of duress or misunderstanding and only a court can do this.

[42] I also explained that:

•  The terms of settlement do not prevent Ms Gasser or her sons from pursuing criminal actions or making complaints to the Police against any organisation or person, including HSE and its managers or employees; and

•  The terms of the settlement apply to Ms Gasser and do not prevent Ms Gasser’s sons from pursuing any action at all against any organisation or person including HSE and its managers or employees.

[43] At the conclusion of the Mention I decided to explore with the parties whether the s. 399A application could be dealt with on the basis of their written submissions rather than conducting a further hearing. I took this step because I formed the view that a further hearing would cause more distress to Ms Gasser and she would continue to make the same submissions, including lengthy allegations about matters which do not involve HSE or its managers and have no relevance to her application for an unfair dismissal remedy or whether it should be dismissed.

[44] HSE Confirmed that it relied on written submissions and did not seek to be heard further in relation to the s. 399A application. Ms Gasser made oral submissions and indicated that she had nothing further to say in relation to the s. 399A application and did not seek further hearing. Notwithstanding this, and on the basis that the matter had been listed for Mention only, I provided Ms Gasser with a further period in which to make any additional submissions in writing in relation to why her application should not be dismissed on the basis that a binding settlement was reached.

[45] Further, I informed Ms Gasser that if I decided that her application should be dismissed on the basis that a binding settlement agreement was reached on 23 June 2020, I would give her 21 days to take some action in a court to set aside the terms of settlement. I further informed Ms Gasser that if she did not take such action within the required time, I would dismiss her application for an unfair dismissal remedy.

[46] Following the mention, Ms Gasser sent a written version of the same submissions she made at the Mention. I have had regard to those submissions.

Consideration

[47] In Masters v Cameron 2 the High Court said in relation to when a binding contract will exist:

“Where 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 case may belong to any of three cases. It may be one in which 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. Or, secondly, 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. Or, thirdly, 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 a contract binding the parties at once 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; and 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.” 3

[48] The audio recording of the 23 June 2020 settlement makes clear that a binding agreement was reached. The agreement is of the kind identified by the High Court in the first example in Masters v Cameron. I cannot set aside the binding settlement agreement on the basis of the reasons advanced by Ms Gasser. As a Full Bench of the Commission observed in Ewan Chapman v Ignis Labs Pty Ltd T/A Ignis Labs:

“Firstly, it is clear that the effect of duress, should it be established (which we do not consider could be so established), would be to render the settlement agreement voidable, rather than void. Accordingly, Mr Chapman’s contention that he is not bound by the settlement agreement on this basis, without more, cannot be sustained. Secondly, it is equally clear that a determination that the settlement agreement ought be set aside on the ground of duress is a matter for the courts, not this Commission.”

[49] Ms Gasser contends that she was forced into settling her claim by the conduct of HSE’s representative at the hearing on 23 June 2020. Ms Gasser also contends that she was stressed at the time the Agreement was made and did not understand its terms. Given that I have no power to decide whether the settlement agreement is vitiated by duress or a misunderstanding on the part of Ms Gasser, I make no finding in this regard. I do note that the digital court book which Ms Gasser complains caused her to be confused, contained all the information filed by the parties in response to Directions I issued for the hearing of Ms Gasser’s claim for an unfair dismissal remedy. If the digital court book contained information about Ms Gasser’s application for an order to stop bullying, then that information was provided by Ms Gasser in relation to her unfair dismissal application and was included in the digital court book on that basis. I do not accept that Ms Gasser can be confused about the contents of the court book when she provided the documents that make up the contents.

[50] Ms Gasser can have no basis for confusion about the relationship between the unfair dismissal application and the application for an order to stop bullying, given that the latter application was dismissed by Deputy President Clancy in a Decision issued on 18 March 2020. 4 The applicant for an order to stop bullying was dismissed on the basis that Ms Gasser’s employment was terminated before the matter was heard, and on that basis, it had no reasonable prospects of success.

Conclusion

[51] Ms Gasser and HSE made a binding oral settlement agreement on 23 June 2020, which extinguished Ms Gasser’s unfair dismissal application. If Ms Gasser wishes to contend that the settlement agreement was entered into under duress or mistake then she must make an application to a court to have the settlement agreement set aside.

[52] As previously indicated, I intend to give Ms Gasser a 21 day period in which to seek legal advice about her position. Ms Gasser should note that I am giving her this opportunity to try to prevent her from causing further costs to the Respondent by pursuing a claim which cannot succeed rather than encouraging her to seek an order from court setting aside the settlement agreement.

[53] Ms Gasser should also note that if she wishes to complain to the Police about any matter including matters related to her former employment with HSE, the terms of settlement do not prevent her doing so. The terms of settlement are not binding in any way on Ms Gasser’s sons. Finally, Ms Gasser should note that she is not entitled to reject the settlement agreement by refusing to sign the terms of settlement, while still claiming an entitlement to be paid the settlement sum provided for in the agreement. Ms Gasser’s failure to sign the agreed terms of settlement document is a breach of the terms she agreed to on 23 June 2020.

[54] Further, Ms Gasser should note that if she wishes to be paid the settlement amount that was agreed then she needs to honour her part of the agreement by signing a document that sets out the agreement.

[55] If Ms Gasser persists with her current position, she is required to establish to my satisfaction by 4.00 pm on Monday 22 March 2021 that she has made an application to a court seeking to set aside the terms of settlement. If Ms Gasser does not satisfy me that she has made such an application, I will dismiss her unfair dismissal application without further notice to her.

[56] Ms Gasser should note that it is not the role of the Fair Work Commission to provide her with advice in relation to how to go about making such an application and no correspondence will be entered into with Ms Gasser in this regard. I urge Ms Gasser to reconsider her position and to fulfil her obligations under the binding oral settlement agreement which was reached on 23 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726396>

 1   Item (j) deals with claims for workers compensation and superannuation which are not covered by the release and discharge.

 2 [1954] 91 CLR 353

 3   Ibid at 360

 4   [2020] FWC 1451.