Shakira Reid v - [2023] FWC 624

[2023] FWC 624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shakira Reid
v

Gunditjmara Aboriginal Cooperative Limited

(U2022/10759)

COMMISSIONER WILSON

MELBOURNE, 27 MARCH 2023

Application for an unfair dismissal remedy – binding settlement agreement reached –
application dismissed pursuant to s.587.

Ms Shakira Reid (the Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

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.

Background

The application was filed in the Fair Work Commission (the Commission) on 9 November 2022.

The matter was listed for a Member Assisted Conciliation on 19 January 2023. At the Member Assisted Conciliation the parties agreed to resolve the matter on the basis of a confidential settlement.

The Applicant provided signed Terms of Settlement to the Commission and the Respondent on 21 January 2023. The Respondent provides signed Terms of Settlement to the Commission and to the Applicant on 24 January 2023.

Following receipt of the signed Terms of Settlement from both parties I vacated the hearing date.

Given the length of time since the signing of the Terms of Settlement my Chambers invited a Notice of Discontinuance from the Applicant on 20 February 2023, 2 March 2023 and 8 March 2023. No response was received.

Consideration

Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”

In Masters v Cameron the High Court of Australia has found 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…

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: [2023] FWC 624
Decision Date: 27 MARCH 2023

CaseChat Overview and Summary

In Shakira Reid v Gunditjmara Aboriginal Cooperative Limited, the Fair Work Commission was presented with an application for an unfair dismissal remedy filed by Ms Shakira Reid against the Gunditjmara Aboriginal Cooperative Limited. The Commission dismissed the application pursuant to section 587(1)(c) of the Fair Work Act 2009, concluding that the application had no reasonable prospects of success due to the existence of a binding settlement agreement between the parties. The Applicant had filed the application on 9 November 2022, and after a Member Assisted Conciliation on 19 January 2023, the parties agreed to resolve the matter through a confidential settlement. Both parties signed the Terms of Settlement, and the Commission vacated the hearing date following the receipt of the signed documents. Despite invitations from the Commission, the Applicant did not provide a Notice of Discontinuance, leading to the dismissal of the application.

The legal issues before the Commission included whether the binding settlement agreement between the parties effectively extinguished the original claim, and if the Commission had the authority to dismiss the application under section 587(1)(c) of the Act. The Commission referenced the decision in Masters v Cameron to determine that the settlement agreement constituted a binding contract. The Federal Court has affirmed that the Commission has the power to dismiss an unfair dismissal application where a binding settlement agreement exists, as the agreement extinguishes the original cause of action. The Commission concluded that the continued pursuit of the application was frivolous or vexatious and lacked reasonable prospects of success.

The Commissioner found that the binding settlement agreement was in the nature of the second type discussed in Masters v Cameron, which is immediately binding and reflects the agreed terms in the Terms of Settlement document. The Commissioner also corrected the Respondent’s name from “Gunditjmara Aboriginal Cooporation Ltd” to “Gunditjmara Aboriginal Cooperative Limited” to reflect the correct legal name, a change that both parties accepted. Consequently, the Commission dismissed Ms Reid’s application for an unfair dismissal remedy and issued an order changing the Respondent’s name and dismissing the application.

Orders