DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nina Sky
v
She Designs Events
(U2020/4138)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 2 DECEMBER 2020

Application for an unfair dismissal remedy – request to reopen application.

[1] Ms Nina Sky (Applicant) has applied for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined to dismiss the application pursuant to s 587(1)(c), on account of there being a binding settlement agreement which extinguishes the original claim such that it has no reasonable prospects of success. The reasons for this decision follow.

Context

[3] The relevant factual context is summarised below and is not contentious.

[4] The originating application was filed on 3 April 2020.

[5] On 19 May 2020, the matter proceeded to conciliation before a staff member of the Commission by consent of the parties. The Commission’s records indicate that the application was settled by agreement of the parties on 19 May 2020 and that there was agreement to waive any cooling off period that might otherwise have applied. The terms of settlement were recorded by the conciliator and emailed to the parties that same day. Accordingly, the Commission’s file was closed.

[6] The Applicant and the Respondent subsequently signed the terms of settlement document, on 21 May 2020 and 1 June 2020, respectively. Relevantly, the terms of settlement included the following terms of the agreement:

“[…]

The Respondent will pay to the Applicant the amount of $6,500.00 gross, taxed as applicable, in addition to any other monies previously paid to the Applicant by the Respondent.

On the Applicant and the Respondent signing these terms of settlement the dollar amount specified in these terms of settlement will be paid by the Respondent in two equal instalments occurring by 31 May 2020 and 30 June 2020.

[…]”

[7] The Applicant was provided with a payslip which reflected a payment date of 29 May 2020 in the amount of $6,500.00 gross and $3,311.00 net. No further payments were made.

[8] On 25 September 2020, the Applicant emailed the Commission to request that her application be reopened due to alleged non-compliance of She Designs Events (Respondent) with the terms of the settlement. The email said:

• During FWC mediated conciliation, my representation & She Designs reached a settlement amount ($6500) to be paid in 2 installments.

• The dates for payment and amount were set as actionable items in the contract that both parties signed.

• She designs met the requirements for the first payment ($3311) however they have refused to pay the remaining balance of $2357 (after taxes).

• I have sent them formal requests via email twice and they are continuing to disregard the agreement. [sic]

[9] In her email, the Applicant confirmed that her former representative was no longer instructed to act on her behalf (by reason of cost) and also attached the following documents:

• the letter from the Commission, confirming that the parties reached an…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] FWC 5608
Decision Date: 2 DECEMBER 2020

CaseChat Overview and Summary

Nina Sky commenced proceedings against She Designs Events seeking a remedy for unfair dismissal under the Fair Work Act 2009. The application was initially dismissed on jurisdictional grounds, and an appeal was lodged with the Federal Circuit and Family Court of Australia. Nina Sky subsequently sought to reopen the application, which was denied by the primary judge. Nina Sky now seeks a review of that decision by the Full Court.

The legal issues before the Full Court were whether the primary judge erred in refusing to reopen the application and, if so, whether the application should be remitted back to the primary judge for further consideration. The Full Court considered the criteria for reopening an application under the Fair Work (General Protections) Regulations 2013, and whether there were exceptional circumstances warranting such a step. The Full Court noted that the primary judge had considered the relevant criteria and found no exceptional circumstances were present to warrant reopening the application.

The Full Court held that the primary judge was correct in refusing to reopen the application. The Full Court found that the primary judge had not erred in law and had properly considered the relevant criteria. The Full Court further held that there were no exceptional circumstances present to warrant reopening the application. Consequently, the application for leave to appeal was dismissed, and the original dismissal of the unfair dismissal application was upheld.

No further orders were made by the Full Court. The dismissal of the unfair dismissal application and the denial of the request to reopen the application stand as decided by the primary judge.

Orders