Conciliation settlements in the Fair Work Commission

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It is not uncommon for a person to contact me and seek advice how to walk away from an agreement reached at a conciliation conference to settle an unfair dismissal case. It is almost impossible to achieve, as appears clear from this extract from a Fair Work Commission on the point.

“There appears to be no disagreement between the parties that an agreement to settle the unfair dismissal application was reached between the parties on 25 June 2020. Further, there is no disagreement between the parties that the written terms of the Deed provided by the Respondent’s lawyers to the Applicant on 30 June 2020 reflected the terms agreed in conciliation. Further, the evidence before me supports a conclusion that the Applicant did waive the cooling off period offered to him although I accept that he did seek legal advice after having given that waiver.

[31] It does appear that the primary complaint of the Applicant is that the conciliation was not binding, was unfair, that he was disadvantaged and the offer was disproportionate (or insufficient) to what was otherwise owed to him.

[32] There is nothing in the submissions before me to suggest that there was not an offer and acceptance of the terms of the agreement during conciliation or that the Applicant was not capable of entering into a legally binding agreement with the Respondent.

[33] In this case I am satisfied that an “accord and satisfaction” has been reached. That the Applicant has not signed the Deed or it has not been executed is not to the point. The agreement was reached in conciliation. It was then to be more fully set out in the Deed and this was done by the Respondent on 30 June 2020 (although why it took 4 business days for this to be done is unclear). Any cause of action now resides in the agreement reached.

[34] To the extent that the Applicant now says that the agreement was not fairly reached this is not a matter of the Commission. The agreement is made, the existing cause of action (the unfair dismissal application) is “extinguished”.

[35] For these reasons the application to “re-open” the unfair dismissal application – which would require the agreement reached to be set aside – is not available to the Commission and the application must be dismissed.

[36] In reaching my conclusion I would observe that there is no claim of any improper conduct of the Conciliator who worked with the parties on this matter. Rather it appears that the Applicant, on reflection but having refused a cooling off period, has changed his mind as to the fairness of the agreement reached. There is no indication that the Respondent refused an agreement if the Applicant was given a cooling off period. The purpose of the cooling off period is to allow an unrepresented party time to consider and digest what is put for agreement. To not take that option and then complain of unfairness is to attempt to shift the responsibility for the decision of the Applicant onto the Conciliator.

[37] If it is claimed that the Applicant was coerced into the agreement (although this does not appear to be put in such terms) it is unclear how the Commission can deal with that. To set aside an agreement reached or to claim the agreement is void are not matters, it would appear to me, within the jurisdiction of the Commission.

[38] To the extent that the Applicant says that conciliation is not binding, that may so. What is binding however is the agreement that was reached by the parties in that conciliation for all of the reasons outlined above in Gorman.

[39] As to the Applicant’s submission that it is in the public interest for the Commission to hear the unfair dismissal application that may be so. However, the Commission’s powers are limited by the provisions of the FW Act. The Commission does not have power at large to hear matters because they might be in the public interest. This is, therefore, not a relevant consideration.

[40] On the material before the Commission the Commission does not appear to have jurisdiction to deal with the Applicant’s dispute in relation to his redundancy under the SSI Award or the FW Act. The only application by the Applicant before the Commission is under Part 3-2 of the FW Act. The Commission’s power to deal with a dispute under an award is found in Part 6-2 of the FW Act. Further, to make an application or for the Commission to deal with a dispute an applicant must be an employee. At the time of making his application for unfair dismissal the Applicant was no longer an employee of the Respondent – his employment had been terminated. The Commission would therefore not have jurisdiction to deal with a dispute in accordance with the SSI Award.

CONCLUSION

[41] For the reasons given above I am satisfied that an agreement was reached between the Applicant and the Respondent of the second type referred to in Masters v Cameron. The terms were agreed and it was intended that those terms be set out more fully in a written agreement.”

Segran v Certis Security Australia (Victoria) Pty Ltd T/A BRI Security (2020) FWC 4192 delivered 11 August 2020 per Bissett C