Yu Yang v The trustee for Gold Leaf (Springvale) Hybrid Unit Trust
[2024] FWC 2927
•31 OCTOBER 2024
| [2024] FWC 2927 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Yu Yang
v
The trustee for Gold Leaf (Springvale) Hybrid Unit Trust
(U2024/4013)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 31 OCTOBER 2024 |
Application for an unfair dismissal remedy – settlement agreement reached – application dismissed pursuant to s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success.
Background
Ms Yu Yang (Applicant) applied to the Commission alleging that she was unfairly dismissed by The trustee for Gold Leaf (Springvale) Hybrid Unit Trust (Respondent). The application was the subject of a conciliation conference at 2.15pm on 7 May 2024. At 5.05pm on the same day, email correspondence was sent by the Commission staff conciliator to the parties, including to the Applicant’s nominated email address. This email correspondence attached a letter dated 7 May 2024, which relevantly outlined:
“Thank you for your participation in today’s conciliation in the above case. I confirm that you reached a settlement agreement and I attach terms of settlement.
I confirm the parties have agreed to waive the cooling off period that applied to this agreement.
As this is an agreement reached between the parties, you must send your signed terms to the other party.”[1]
The Applicant disputes that she agreed to the terms of the settlement agreement document sent to the parties by the Commission staff conciliator. The Applicant submits that the matter did not settle at the conciliation conference on 7 May 2024 and seeks to have her unfair dismissal application listed for hearing. The Applicant’s contention and her request are opposed by the Respondent. Ordinarily, what is discussed during a conciliation conference is to remain confidential. However, in this matter, I consider the parties have waived any requirement for confidentiality because in arguing their competing positions, they have voluntarily disclosed details of what was discussed at the conciliation conference on 7 May 2024.
At the heart of Ms Yang’s complaint are two clauses in the settlement agreement document, which was attached to the 7 May 2024 letter:
a)Clause 7, which provides:
“Within 7 days of the Applicant and Respondent signing this agreement, the Applicant will withdraw his complaint to the Fair Work Ombudsman regarding alleged underpayment of entitlements.”[2]
b)Clause 9, which provides:
“On the Respondent complying with clause 4, the Applicant releases and discharges the Respondent and its directors, officers and employees from all claims, actions and liability:
·to which the Respondent may now be subject, or to which the Respondent may, but for this agreement, have been subject in the future, and
·that relate to the Applicant’s employment by the Respondent or the termination of that employment.”[3]
(my emphasis)
Correspondence before the Commission reveals that having received the settlement agreement document, the Applicant sent an email to the Commission staff conciliator, at 6.05pm on 7 May 2024. That email relevantly stated:
“In today's conciliation we didn't mention about fair work ombudsman at all! I agreed to settle because I want fair compensation for the unfair final pay. I was completely misled. Is there any adjustment to do?
Thank you!”[4]
On 8 May 2024, the Applicant followed up her email with two phone calls to the Commission. The first of the two Commission file notes records that during the first call, the Applicant stated that it was not made clear to her that she would have to withdraw any Fair Work Ombudsman (FWO) claims and that she had not mentioned her FWO claim to the Commission staff conciliator. The first file note also records that the Applicant said that she had not been told that the agreement was the full and final settlement and that she asked to reopen her matter or cancel the agreement. The Applicant was advised by the Commission staff member who took her call that she would have to make a request to reopen her matter in writing to be considered by a Member of the Commission. The Commission file note for the second call records that the Applicant said there was no discussion about discontinuing a FWO matter.
On 13 May 2024, Mr Casey Chow, lawyer, sent an email at 2.36pm on behalf of the Applicant addressed to the Commission staff conciliator and the lawyer for the Respondent, Mr Christopher Tang, which relevantly outlined:
“…We are instructed that during the conciliation, discussions and negotiations were all related to settlement of the dismissal. It is also worth noting that the parties agreed to the terms for settling the unfair dismissal claim.
Nevertheless, the settlement terms proposed by the Respondent does not fully reflect the agreed terms. In particular, the Respondent intentionally included clause 7 and failed to address the scope of settlement as contained in clause 9 and 10.
In circumstances where the Respondent was legally represented at the material times, it should have brought into discussion at the conciliation other matters that it wished to become part of the settlement. We are instructed that throughout the entire course of the conciliation, the Respondent never raised any discussion about the Fair Work Ombudsman complaint and that such complaint never formed part of the settlement terms. We refer to and rely on our client’s email to the Fair Work Commission dated 7 May 2024. It is our client’s position that the Respondent’s conduct in preparing the proposed terms of settlement and pressing our client to sign and return the same are unconscionable.
Accordingly, we attach herewith the terms of settlement which reflect the terms agreed at the conciliation for the Respondent’s signing. Changes are tracked for your easy reference.
Should the Respondent refuses to sign, we understand that our client will apply for the matter to be reopened.
We also invite conciliator [Conciliator’s Name] confirmation as to whether the parties expressly agreed to including the Fair Work Ombudsman Complaint to be part of the settlement.
For the purpose of clarity, we confirm Ms. Yang is copied herein.”[5]
(my emphasis)
Mr Tang sent an email in response at 3.00pm on 13 May 2024, which copied in the Commission and relevantly stated:
“We want to clarify that the Respondent did not prepare the terms of settlement and that we did not pressure your client to sign the agreement. The Fair Work Commission prepared the terms of settlement and accurately recorded the terms of settlement reached by the parties
At the conciliation, your client agrees to settle all claims made by your client against the Respondent, including the unfair dismissal claim and any claim that she may have arising from her employment. Your client also agrees to withdraw her complaint to the Fair Work Ombudsman.
As we have an agreement to settle your client's claim, please ask your client to sign the terms of settlement prepared by the Commission and return to me as soon as possible.”[6]
The Commission’s file reveals that at 3.24pm on 13 May 2024, the Commission staff conciliator sent an email directly to the Applicant. This was a reply to the Applicant’s email sent at 6.05pm on 7 May 2024, and relevantly outlined:
“The terms of settlement reflect my understanding of what was discussed and agreed at conciliation. As such, I am unable to amend the terms of settlement. You may wish to seek independent legal advice in respect of the matter.
As my role in the matter has concluded you should direct any further correspondence to [email protected].”[7]
At 11.30am on 20 May 2024, Mr Chow sent an email to Mr Tang and the Commission, which outlined, inter alia:
“In response to Mr. Tang and [Conciliator’s Name]’s emails, we are instructed that at no time throughout the conciliation conference that Ms.Yang agreed to settling any underpayment claims, the majority of the discussion was the amount equivalent to long service leave and the number of weeks. During the conciliation conference our client never mentioned anything about any Fair Work Ombudsman complaint, and [Conciliator’s Name] did not bring up such issue to our client. Our client was employed and, allegedly, underpaid by the Respondent for over 10 years’ of time and no reasonable person in our client’s position would settle the matter on the current terms.
We have clear and strong instructions that at no time did the ‘Fair Work Ombudsman’ was ever mentioned to our client at the conciliation conference.
With respect, we also note that [Conciliator’s Name]’s response to our email dated 13 May 2024 does not address whether the parties expressly agreed for any Fair Work Ombudsman Complaint shall form part of the settlement.”[8]
This prompted the following reply email from Mr Tang later on 20 May 2024, at 5.23pm:
“It is very disappointing to see that your client has continue her stance on the terms of settlement reached at the conciliation, where your client said that she understood the terms and agreed to them. This is further evidence by the terms of settlement which was prepared by the Commission and we submit correctly reflects the terms reached.
We were not copied into email with [Conciliator Name] and therefore, we do not make any comments about what [Conciliator Name] may or may not have said in his email.
At the conciliation conference, the issue with the Fair Work Ombudsman was brought out as was the alleged underpayments. The Respondent only agree to settle because of your client’s agreement to settle any and all matters arising from the termination of the employment and from the employment itself. Your client also agrees to withdraw her complaints to the Fair Work Ombudsman.
We do not agree to re-listing this matter at the Commission, as we have a binding agreement in place. We will oppose any application to re-open the application on the basis that there was a valid term of settlement and your client has no basis for reopening the matter.”[9]
Following a telephone call to the Commission, Mr Chow sent an email to the Commission and Mr Tang at 3.49pm on 28 May 2024, stating:
“…We are instructed that the matter did not settle as part of the settlement terms were never discussed or agreed to by the Applicant.
Accordingly, we are writing to request the Commission to list the matter for hearing.
…”[10]
This prompted the following reply email from Mr Tang, later on 28 May 2024, at 3.57pm:
“We do not agree to re-listing this matter at the Commission, as the parties have reached a binding agreement at conciliation conducted by [Conciliator’s name].
The applicant has no basis to ask for a re-listing of the matter for hearing.”[11]
On 20 June 2024, I issued directions which required the parties to file and serve material on the question of whether or not there was a binding settlement reached and listed the matter for a hearing, which I ultimately conducted as a determinative conference on 19 July 2024. The Applicant gave evidence with the assistance of a Mandarin interpreter and was granted permission to be represented by Mr Chow. The Respondent was granted permission to be represented by Ms Pase of Counsel and adduced evidence from Mr Tang.
Evidence and submissions
The Applicant has submitted there was no unequivocal acceptance of the offer made by the Respondent. The Applicant asserted, either directly or through her solicitor, a range of matters:
a)There was no mention about the FWO at the conciliation conference and, specifically, she had not mentioned her FWO complaint to the Commission staff conciliator and nor did he bring it up;[12]
b)The discussions and negotiations were all related to settlement of the dismissal;
c)She agreed to settle because she wanted fair compensation for the ‘unfair final pay’ but she had not been told that the agreement was the full and final settlement;
d)There was no discussion about and nor was it made clear to her that she would have to withdraw any FWO claims – this did not form part of the settlement terms;
e)At no time throughout the conciliation conference did she agree to settling any underpayment claims, with the majority of the discussion directed towards the long service leave and the number of weeks;
f)Stemming from disagreement between the parties over the year in which she commenced employment, the Applicant believed she was entitled to 13 weeks long service leave pay, while the Respondent believed she was entitled to 12 weeks;
g)There was also disagreement regarding the Applicant’s weekly wage, resulting in the Commission staff conciliator stating that he would “choose a middle path. Because I said 2000, they said 1250, so he put 1700”;[13]
h)The offer the Commission staff conciliator made on her behalf was for 13 weeks long service leave, four weeks’ notice and 10 weeks’ compensation, but she said she was not told the dollar amount;[14]
The Respondent made a counter-off of $31,080 and although she did not know how it was calculated, she accepted it because it was much more than the Respondent’s previous offer;[15]
j)She agreed to the $31,080 payment, understanding that part of it was for long service leave, part of it was for notice and the remaining part represented a number of weeks’ pay for unfair dismissal;[16]
k)She did not agree to clause 7 in the settlement agreement document, which she did not raise and nor was it raised by anyone else, because she understood the difference between the functions of the Commission and the FWO;[17]
l)When asked about the 3-day cooling off period, she said she did not need it because she thought the agreement was for the unfair dismissal claim only;[18]
m)Other than referring to the 3-day cooling off period and confirming that the Applicant had reached agreement, the Commission staff conciliator did not confirm the terms of the settlement agreement and nor did he “ask” her to withdraw the FWO complaint, either in joint session or in private;[19]
n)She was shocked when she saw the reference to the withdrawal of the FWO complaint when she received the copy of the settlement agreement document from the Commission staff conciliator because there had been no mention or discussion about this. She also noticed the reference to the withdrawal of “his” claim to the FWO and thought that a mistaken reference to a former colleague had been made. This prompted her to write an email to the Commission staff conciliator;[20] and
o)She knew what was to be dealt with by the Commission and that underpayments had to be pursued through the FWO, stating:
“So I know the Commission is only doing with unfair dismissal and the
ombudsman could help me to do another - like an underpayment. When I
received the first call from ombudsman, the guy told me I can get my pay back within six years, so I know the difference clearly.” [21]
The Applicant submitted that even though she might not have correctly categorised the pursuit of her claim for long service leave, she was only intending to deal with the unfair dismissal claim and her intention remained to deal with the unfair dismissal claim only, and not any other underpayment claims. The Applicant maintained that the FWO complaint and its withdrawal were never discussed during the conciliation and nor was it communicated to her that the withdrawal of the FWO complaint was part of the settlement. The Applicant argued that her early response to the Commission staff conciliator on 7 May 2024 supports these contentions. The Applicant submitted that Clause 7 may have been inserted into the settlement agreement document prepared by the Commission staff conciliator because it was copied and pasted from a settlement agreement document in another matter, hence the insertion of the word “his” instead of “her” in Clause 7. The Applicant also suggested that the Commission staff conciliator did not pass on offers or relay information correctly or accurately because she was not aware of how the purported settlement figure came about until the determinative conference and the Respondent did not know how the Applicant had calculated her offer.
The Applicant asserted that even if the Respondent had intended for the withdrawal of the FWO complaint to form part of its offer, this was not properly communicated to her, such that there was no ‘meeting of the minds’ or agreement reached.
The Applicant submitted that the Respondent did not produce any material that suggested that it (the Respondent) had requested the withdrawal of the FWO complaint and as such, this requirement could not have formed part of its offer. In this regard, the Applicant argued the handwritten and typed notes of Mr Tang did not assist because it was unclear when the parts relied upon were written.
Mr Tang attached to his witness statement handwritten notes he said he took during the conciliation conference and a typed summary of them he subsequently made on the same day.[22] Mr Tang said the typed notes were redacted “for both relevance and LPP purposes”,[23] explaining that the first part of the redactions were for relevance because they related to another matter and the second part, at the end of the typed note, was redacted for legal professional privilege.[24] Mr Tang gave evidence that the unredacted handwritten notes outline what was discussed by the parties in both joint and private sessions, with the discussion in private session outlined on the last page of the handwritten notes.[25] The typed notes appear to record a summary of comments made by the Applicant recorded by Mr Tang in his handwritten notes. Both versions of the notes outline a first offer of $34,720.72 and a counter offer of $31,080.[26] Mr Tang said the basis of the $34,720.72 sum was not explained and was simply conveyed by the Commission staff conciliator.[27] When asked how the $31,080 counter-offer sum was arrived at, Mr Tang relevantly stated at the determinative conference:
“Because the accountant actually wasn't there, but he's the one who
work it out. I mean, it was just the figures - because we don't know how the
34,077 - because we were not in the private session with [Conciliator name] when he - so
the offer came from Ms Yang at 34,720.72, then we just counter-offered.”[28]
Mr Tang’s evidence was that the parties had discussed the alleged underpayments that were the subject of the Applicant’s FWO complaint, and in particular the allegation made by the Applicant that her hourly rates of pay were not in accordance with the relevant Modern Award rates of pay. Mr Tang claimed that the Respondent took these allegations into account when agreeing to settle the matter for $31,080.[29] He also said the Commission staff conciliator asked the Applicant in joint session at the end of the conciliation whether she agreed to withdraw the FWO complaint and whether she was happy to waive the cooling off period and the Applicant answered yes to both questions.[30]
The handwritten notes of Mr Tang recorded “no Ombudsman, Fully Releases, past & present”[31] and his typed notes outlined:
“In the end agree to settle for $31,080.00 gross no cooling off, withdraw complaint to Ombudsman, full release and no disparagement.”[32]
The Respondent observed that neither the Applicant’s Form F2 nor the Respondent’s Form F3 made mention of the FWO complaint and posed the question as to how it was the Commission staff conciliator would have come to know about it so as to have included a reference to it in the settlement agreement document, together with the requirement that it be withdrawn. Noting the Applicant had asserted that she had not mentioned the FWO complaint to the Commission staff conciliator and further, that the Commission staff conciliator had not brought it up with her, the Respondent argued that the Applicant must be inferring that the Commission staff conciliator was informed of the FWO complaint by the Respondent in private session, proceeded to not mention it in any private session with the Applicant or in joint session and then, on his own initiative, included it in the settlement agreement document. In this regard, the Respondent noted that in pressing her application, the Applicant is not asserting that the parties had discussed the Respondent’s desire for the FWO complaint to be withdrawn and that the Commission staff conciliator had subsequently acted on a misunderstanding or mistaken view.
The Respondent submitted that it ought to be assumed that the Commission staff conciliator would only include terms in the settlement agreement that were agreed between the parties. The Respondent argued that if full credit was given to the evidence of the Applicant that the FWO complaint and the FWO were never mentioned, either in joint or private session, at the conciliation conference, the Commission staff conciliator’s conduct in knowingly including a settlement term in the settlement agreement document that he had not discussed with the Applicant, that would require a finding of a gross error, amplified when he asserted that the terms of settlement reflected his understanding of what was discussed and agreed at conciliation in his 13 May 2024 email.
In essence, the Respondent argued that rogue behaviour by the Commission staff conciliator was not a plausible explanation for the inclusion of the reference to the FWO complaint. The Respondent submitted the more plausible explanation, on the balance of probabilities, was that the FWO complaint was discussed in joint session, or at the very least in private sessions with both parties and they agreed that it would be withdrawn in exchange for the payment of a monetary sum.
The Respondent asserted that it is not open to the Commission to make a finding that the Commission staff conciliator was simply mistaken or confused about whether the parties had discussed the possibility of the withdrawal of the FWO complaint or whether they had agreed to its actual withdrawal, because the Applicant’s evidence was that the words ‘Fair Work Ombudsman' were not mentioned at all. The Respondent proffered that the only way the Commission could make what it termed as a ‘conciliator confusion based finding’, was if the Commission also made a finding that that the FWO complaint was indeed discussed and the Applicant’s evidence on this point to the contrary was false. If the Commission was inclined to make such a finding, the Respondent urged the Commission to instead find that Mr Tang's evidence should be preferred over the Applicant’s.
The Respondent submitted that Mr Tang’s evidence, the Respondent's motivation to make a settlement payment in this matter, and the inferences it had invited the Commission to draw about the implausibility of the proposition that the conciliator had completely fabricated a term of settlement, support a finding that a binding settlement agreement was entered into by the parties at the conciliation conference, noting there is no dispute that the parties had reached an agreement to waive the three‑day cooling off period.
Consideration
Asserting that she understood the Commission process was different to the pursuit of underpayments through the FWO, the Applicant’s position is that at no stage did she agree to withdraw her complaint to the FWO and further, that she did not raise the FWO complaint and nor was it discussed at all. Additionally, the Applicant maintains that she did not agree to release the Respondent from all disputes relating to her employment. I have noted the Applicant’s almost immediate response to the Commission staff conciliator’s post-conference correspondence included the emphatic assertion that there had been no mention of the FWO and that thereafter, through her lawyers, the Applicant incorrectly asserted that the Respondent prepared the settlement agreement document and intentionally included clause 7 (dealing with the withdrawal of the FWO complaint). The Applicant accuses the Respondent of never having raised the FWO complaint during the conciliation and, in later correspondence, emphasised that the FWO was never mentioned by anyone during the conciliation conference. This is the position the Applicant maintained at the determinative conference.
I have also noted that the Commission staff conciliator’s correspondence dated 7 May 2024 was sent almost immediately after the conclusion of the conciliation conference to confirm that settlement had been “reached” and that the parties had agreed to waive the cooling off period, and to attach the settlement agreement document. In circumstances where the Applicant has steadfastly maintained that the FWO and the FWO complaint was never raised, her central proposition is that the Commission staff conciliator included clauses 7 and 9 in the settlement agreement document either of his own volition or on the sole urging of the Respondent, which the Commission staff conciliator did not raise with her. Based on the same premise, the Applicant is apparently suggesting the Commission staff conciliator then transgressed a second time because, having been invited to confirm whether the parties had expressly agreed to including the reference to the FWO complaint, his response was: “The terms of settlement reflect my understanding of what was discussed and agreed at conciliation.” If the Applicant is inferring that the Commission staff conciliator made a conscious decision to record a settlement that was not agreed, I do not accept such an inference. There is simply no basis to conclude the Commission staff conciliator did not act in good faith. What is determinative in this regard is the fact that the actions and understanding of the Commission staff conciliator are consistent with the understanding of Mr Tang, who was at the conciliation conference and made contemporaneous records.
In the alternative, it is not sustainable for the Applicant to contend that the Commission staff conciliator was mistaken or confused about whether the parties had discussed the possible withdrawal of the FWO complaint and/or whether they had agreed to its actual withdrawal. This is because the Applicant has steadfastly maintained that the FWO and the FWO complaint was never raised.
I do not consider that anything of substance turns on the Commission staff conciliator’s use of the word “his” in Clause 7 of the settlement agreement document. I consider this was simply a typographical/editing error which was likely the result of the use of the cut and paste function when accessing a similar clause from a settlement agreement document from another Commission matter.
The Applicant submitted that her lack of experience and knowledge were such that it should not be assumed that she would have known how a settlement agreement or terms would be drafted. The Applicant also proffered that that it is unlikely she would have agreed to the $31,080 settlement sum when she alleges underpayments during the course of her employment totalling $150,000 - $200,000. Relatedly, the Respondent refutes any suggestion that it would have agreed to pay claimed underpayments for long service leave and notice as part of a settlement without the Applicant also agreeing to withdraw her FWO complaint and release the Respondent from all claims.
In considering these competing assertions, I have noted that the Applicant disclosed having been provided with a draft deed of release[33], five days after having been notified of her dismissal,[34] which provided for a payment to the Applicant in consideration for the Respondent being released from all claims the Applicant may have had against the Respondent in connection with her employment and/or in connection with the termination of it and, further, that the deed could be pleaded as a full and complete defence to any claims in relation to the employment.[35] The Applicant also disclosed having contacted the FWO for assistance after these initial discussions broke down.[36] The Applicant also produced another deed of release dated 7 April 2024,[37] which appears to have been put to her by the Respondent at a subsequent meeting on 8 April 2024.[38] This also contained clauses releasing the Respondent from all claims the Applicant may have had against the Respondent in connection with her employment and/or in connection with the termination of it in return for payment, and providing that that the deed could be pleaded as a full and complete defence to any claims made in relation to the employment. The two deeds provided for there to be payments in lieu of notice and in respect of accrued annual and long service leave, together with the payment of an ex gratia amount. When discussions regarding this proposal broke down, the Respondent proceeded to make payments to the Applicant totalling $9,947.28 for 12 weeks’ long service leave and 4 weeks’ notice.[39] The Applicant was aware that the Respondent held the view that this was all she was entitled to.[40]
It is not in dispute that the $31,080 subsequently offered by the Respondent at the conciliation conference on 7 May 2024 included components for LSL and notice, plus an additional amount. While the parties were unable to explain with precision how the respective amounts they offered in settlement were arrived at, there was no dispute as to the quantum of them. The Applicant said she accepted the Respondent’s counter offer of $31,080 at the conciliation conference because it was much more than the $9,947.28 she had previously been paid by the Respondent.[41]
Having regard to these background matters, I cannot accept that the Applicant would not have already been aware coming into the conciliation conference that the Respondent’s preparedness to make a payment in excess of what it considered to be her minimum entitlement to long service leave and notice would be conditional on the Applicant agreeing to release the Respondent from all disputes relating to her employment and the termination of it. In circumstances where the Applicant had previously been provided with two deeds and had taken advice from the FWO in relation to her employment entitlements, I am not persuaded that it could not be assumed that she would have known how a settlement agreement or terms of one would be drafted, or that she would not have understood the basis upon which the Respondent would be prepared to offer an additional payment. The background context in this matter persuades me that the Respondent would not have agreed to pay the sum it offered at the conciliation conference as part of a settlement unless the Applicant also agreed to withdraw her FWO complaint and release the Respondent from all claims. This weighs in favour of me accepting the accounts of the Commission staff conciliator and Mr Tang.
Conclusion
In Masters v Cameron,[42] the High Court held that a binding agreement could come about in the following manner:
“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 classes. 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.”[43]
Having regard to the matters I have considered above, I am satisfied that the Applicant and the Respondent reached agreement at the conciliation conference on 7 May 2024 and that the settlement position was reflected in the terms of settlement agreement document drafted by the Commission staff conciliator and provided to them later that day. I am satisfied the agreement fell within either the first or second category described in Masters v Cameron and, in either case, that there was a binding contract.
In Australian Postal Corporation v Gorman[44], Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes an existing cause of action and replaces it with a new cause of action based on the agreement.[45]
His Honour stated:
“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Ch 3 Pt 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subs 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”[46]
As can be seen from Australian Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success.
Section 587(1) of the Act relevantly 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.”
As I have found that the parties reached agreement and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. The settlement agreement that was made on 7 May 2024 is a complete answer to the Applicant’s claim that she was unfairly dismissed.
For the reasons outlined above, I find that the Applicant entered into a binding settlement of her claim and, therefore, her application for unfair dismissal remedy is dismissed. An order[47] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
C Chow for the Applicant
C Pase of Counsel for the Respondent.
Hearing details:
2024.
Melbourne
19 July.
[1] Digital Court Book (DCB) at 34.
[2] DCB at 31.
[3] DCB at 31 and 32.
[4] DCB at 36.
[5] DCB at 37.
[6] DCB at 39.
[7] DCB at 115.
[8] DCB at 46.
[9] DCB at 51.
[10] DCB at 57.
[11] Ibid.
[12] Transcript PN166, PN229–232 and PN312.
[13] Transcript PN58.
[14] Transcript PN68–PN80.
[15] Transcript PN81–92.
[16] Transcript PN133–140.
[17] Transcript PN126 and PN166.
[18] Transcript PN170.
[19] Transcript PN171–174 and PN305–307.
[20] Transcript PN182–184.
[21] Transcript PN156.
[22] DCB at 180 (8).
[23] Ibid.
[24] Transcript PN286–289.
[25] Transcript PN267–278.
[26] See both the handwritten and typed notes at DCB at 183–187.
[27] Trancript PN146–148.
[28] Ibid PN150.
[29] DCB at 180 (9).
[30] Transcript at PN299.
[31] DCB at 184.
[32] DCB at 187.
[33] DCB at 96.
[34] DCB at 72 (19).
[35] DCB at 99 and 100.
[36] DCB at 73 (25).
[37] DCB at 104.
[38] DCB at 73 (26).
[39] DCB at 91–92.
[40] DCB at 73 (26) – (28).
[41] Transcript at PN92.
[42] [1954] 91 CLR 353; [1954] HCA 72.
[43] Ibid at 360.
[44] (2011) 196 FCR 126; [2011] FCA 975.
[45] Ibid at paragraph [31].
[46] Ibid at paragraph [33].
[47] PR780759.
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