Robert Stewart v The Oolong Aboriginal Corporation - [2024] FWC 2357

[2024] FWC 2357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Stewart
v

The Oolong Aboriginal Corporation

(U2023/9899)

COMMISSIONER MATHESON

SYDNEY, 3 SEPTEMBER 2024

Application for an unfair dismissal remedy – binding contract between the parties – s 587 – no reasonable prospects of success – application dismissed.

On 10 October 2023, Mr Robert Stewart (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with The Oolong Aboriginal Corporation (Respondent).

The matter was allocated to my Chambers on 3 January 2024 for determination. A mention and directions hearing was held on 10 January 2024 and directions were made for the filing of materials and the matter was listed for hearing in person in Sydney on 4 and 5 March 2024.

On the morning of 4 March 2024 at the commencement of the hearing I enquired whether the parties would like the assistance of the Commission in a final attempt to resolve the matter through a process of mediation, the parties indicated that they were agreeable to the Commission assisting them in attempting to resolve the matter through a process of mediation. I proceeded to conduct a conference in private.

The mediation conference continued on 5 March 2024 and the parties reached agreement to settle the matter pursuant to terms of settlement drafted by the Commission. The terms of settlement were executed and exchanged at the Commission in Sydney on 5 March 2024.

On 15 April 2024 my Chambers wrote to the parties seeking that the Applicant file a Form F50 Notice of Discontinuance (Form F50) once the Respondent had complied with the terms of settlement. No response was received.

On 2 May 2024 my Chambers emailed the Applicant to the email address listed on the Form F2 application (Form F2) seeking that they file a Form F50. On 2 May 2024 the Applicant responded advising “Thank you, will do”.

On 17 and 22 May 2024 my Chambers telephoned the Applicant on the contact number listed on the Form F2 and left two voicemail messages requesting the Applicant call my Chambers. On 28 May 2024, my Chambers emailed the Applicant to the email address listed on the Form F2 seeking that they file a Form F50.

On 5 June 2024, my Chambers telephoned the Applicant on the contact number listed on the Form F2 and left a voicemail message referring to my Chambers’ previous voicemail messages and emails and requesting that the Applicant file a Form F50.

On 13 June 2024, my Chambers telephoned the Applicant on the contact number listed on the Form F2 referring to my Chambers’ previous emails. The Applicant advised my Chambers that they no longer use the email address listed on the Form F2 and provided an alternate email address. The Applicant advised that they were unable…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Robert Stewart v The Oolong Aboriginal Corporation and more:

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 2357
Decision Date: 3 SEPTEMBER 2024

CaseChat Overview and Summary

The Fair Work Commission heard an application from Mr Robert Stewart, who alleged that he was unfairly dismissed by The Oolong Aboriginal Corporation. Mr Stewart applied for a remedy under section 394 of the Fair Work Act 2009. The Commission had previously facilitated a mediation between the parties, resulting in a settlement agreement on 5 March 2024. Despite multiple reminders, Mr Stewart failed to file a Form F50 Notice of Discontinuance, leading the Commissioner to propose dismissing the application under section 587(1)(c) of the Act due to the absence of reasonable prospects of success.

The primary legal issue was whether the binding settlement reached by the parties extinguished Mr Stewart's claim for unfair dismissal, thereby rendering his application without reasonable prospects of success. The Commissioner examined the principles established in Masters v Cameron, which outline scenarios where parties reach a binding agreement. The Commissioner found that the settlement fell within the first category, where the parties intended to be immediately bound by the terms of their agreement. Additionally, the Commissioner referenced Australia Postal Corporation v Gorman, which holds that a binding settlement extinguishes the original cause of action, replacing it with a new cause of action based on the settlement terms.

Based on these legal principles, the Commissioner concluded that the settlement was binding and effectively extinguished Mr Stewart's cause of action. The Commissioner determined that Mr Stewart's application for an unfair dismissal remedy had no reasonable prospects of success, as it was based on a cause of action that no longer existed. Therefore, the application was dismissed under section 587(1)(c) of the Act. An Order to this effect was issued in conjunction with the Decision.

Orders