DECISION

Fair Work Act 2009
s.394—Unfair dismissal

S. S.
v
An Employer
(U2018/3051)

COMMISSIONER PLATT

ADELAIDE, 26 JULY 2018

Application for an unfair dismissal remedy - s.587 application - whether binding settlement reached - s.587A application - application dismissed.

Summary

[1] This decision deals with an application by the Employer, pursuant to s.587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an unfair dismissal application lodged by Mr S on 22 March 2018.

[2] The key issue in these proceedings is whether the parties reached a binding settlement (within the meaning of the relevant authorities) in respect of the unfair dismissal application made by Mr S during conciliation proceedings before Deputy President Binet.

[3] The parties appeared before me on 23 July 2018. Mr S was self-represented and appeared by telephone and the Employer was represented by its employee relations manager. An application for the Employer to be represented by a lawyer pursuant to s.596(2) of the Act was refused, on the basis that whilst there was a factual dispute the matter was not complex and the case law on the topic was well settled.

[4] The conciliation process was confidential and there is no dispute that any settlement was intended to be confidential. In order to determine if a binding settlement was reached it will be necessary for me to discuss the terms discussed. In order to preserve the confidentiality of the discussions, on 23 July 2018, I made an Order by consent pursuant to s.593(3)(c) prohibiting the publication of material which identified or tended to identify the parties. As a result of this order, I will refer to the Applicant as ‘Mr S’ and the Respondent as ‘the Employer’.

Background

[5] The following matters were not in dispute:

[6] That the s.394 application was conciliated by Deputy President Binet. The Applicant and the representatives of the Respondent participated.

[7] A settlement was reached and was recorded by the Employer’s representative (Ms D) in the following terms:

[8] Subsequent to conciliation, correspondence was exchanged as to the impact of making the payment pre or post the end of the 2017/2018 financial year.

[9] On 28 May 2018, Mr S advised that as there would be no difference in the net sum received based on the date of payment, he sought payment before 30 June 2018.

[10] On 29 May 2018, the Employer provided Mr S with a draft agreement and advised that if the agreement was accurate they would provide a final version for execution.

[11] On 2 June 2018, Mr S advised there was one part of the draft agreement that he did not agree with, specifically section (n) which related to the mutual non-disparagement clause. In essence, Mr S contended that the provision in the draft settlement agreement did not reflect the agreement reached at the conciliation conference.

[12] A further conciliation conference was conducted by Deputy President Binet on 6 July 2018 to try and resolve the…

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.

Continue reading S. S. v An Employer

Details

AGLC: S. S. v An Employer [2018] FWC 4377
Case: [2018] FWC 4377
Decision Date: 26 JULY 2018

CaseChat Overview and Summary

In the matter of S. S. v An Employer, the applicant sought an unfair dismissal remedy under section 587 of the Fair Work Act 2009. The applicant, S. S., alleged unfair dismissal from their employment, and the matter was before the Fair Work Commission. The employer contested the application, asserting that a binding settlement had been reached between the parties. The Commission was tasked with determining whether a binding settlement had been achieved and, if not, whether the applicant was entitled to an unfair dismissal remedy.

The primary legal issue for the Commission was to ascertain whether a binding settlement had been reached between the applicant and the employer, as per section 587A of the Fair Work Act 2009. The Commission had to examine the evidence presented by both parties to determine if a genuine agreement had been made, which would preclude the applicant from seeking a remedy under section 587. Additionally, the Commission needed to assess the applicant's eligibility for an unfair dismissal remedy if no binding settlement was found.

The Fair Work Commission concluded that a binding settlement had indeed been reached between the applicant and the employer. The evidence presented demonstrated that the parties had entered into a mutual agreement, which was substantiated by correspondence and other documentation. Consequently, the Commission found that the applicant was not entitled to an unfair dismissal remedy under section 587 of the Fair Work Act 2009. The application was dismissed, as the binding settlement precluded the applicant from pursuing further remedies.

No further orders were made by the Commission.

Orders